# Indian Oil Corporation Ltd. & Ors v. M/S Modern Service Station, Yamunapar, Laxminagar, Mathura

- **Citation:** (2024) 4 ILRA 157
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-03-06
- **Case number:** Special Appeal No. 456 of 2023
- **Bench:** Siddhartha Varma, Manoj Baja
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indian-oil-corporation-ltd-ors-v-m-s-modern-service-station-yamunapar-51749
- **Pages:** 9

## Headnote

Law
-
Marketing
Discipline
Guidelines, 2012 - Clause 5.1.4 - Principles
of Natural Justice - Termination of Petrol Pump
Dealership - Indian Oil Corporation terminated
dealership of M/s Modern Service Station for
alleged tampering in dispensing units (broken
seals, soldering, extra wiring) detected during
joint inspection on 17.09.2020, classified as
"critical
irregularities"
under
Guidelines.
Petitioner's defence that tampering occurred
during software upgradation by M/s GVR
engineer
(16.09.2020)
not
considered
by
authorities, violating natural justice. No evidence
showed petitioner's unauthorized access to
equipment post-GVR intervention. Single Judge
correctly
quashed
termination
order
(05.10.2021) and appellate order (07.04.2022)
for failing to address petitioner's defence,
without remanding for fresh appraisal due to
potential evidence tampering. Scope of judicial
review under Article 226 limited but warranted
due to procedural unfairness. (Paras 18-26)
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Special Appeal Dismissed.

List of Cases cited:

## Text

4 All. Indian Oil Corporation Ltd. & Ors. Vs. M/S Modern Service Station,
 Yamunapar, Laxminagar, Mathura
157
what is the amount of financial benefit
available to a girl student in Kanya Vidya
Dhan Scheme. This, in our opinion, remains
the substance of the question. The amount
payable in the scheme undisputedly is
Rs.30,000/-.

25. The question posed is essentially
with regard to Kanya Vidya Dhan Scheme
which has been introduced by Government
Order dated 22.8.2012. The emphasis laid on
the question is with reference to original
scheme which is already discussed above and
the amount payable thereunder. Merely
because in the modified scheme, launched
later, high school pass out student is omitted
and
only passing
of
intermediate
or
equivalent examination is mentioned, it
cannot be said that question no.93 has
become wrong. The modified scheme limits
the grant of benefit to 99,000 students and
specified the criteria for choosing such
limited candidates for the grant of benefit.

26. We are of the considered view that
in the matter of public examination where
large scale recruitment are undertaken some
play in the joints would have to be conceded
to the examining authority. It is possible that
the question may not have been framed in the
best possible manner or a better formulation
may be advisable, but it cannot be a ground
to hold the question itself to be wrong as long
as the question can be understood by a
candidate and can be answered. Unless it is
shown that the question is wrong or the
formulation of question is such that the
candidate could not have understood the
question or answered it, we would not be
justified in interfering with the question
itself.

27. In view of the deliberations held
above, we find ourselves to be in respectful
agreement with the view taken by the
learned Single Judge for dismissing the
writ petition filed by the petitioner. The
special
appeal
lacks
merit
and
is,
accordingly, dismissed.
----------
(2024) 4 ILRA 157
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
HON'BLE MANOJ BAJAJ, J.

Special Appeal No. 456 of 2023

Indian Oil Corporation Ltd. & Ors.
 ...Appellants
Versus
M/S Modern Service Station, Yamunapar,
Laxminagar, Mathura ...Respondents

Counsel for the Appellants:
Sri Shrey Sharma, Sri Anil Sharma

Counsel for the Respondents:
Ms. Shreya Gupta

Contract
Law
-
Marketing
Discipline
Guidelines, 2012 - Clause 5.1.4 - Principles
of Natural Justice - Termination of Petrol Pump
Dealership - Indian Oil Corporation terminated
dealership of M/s Modern Service Station for
alleged tampering in dispensing units (broken
seals, soldering, extra wiring) detected during
joint inspection on 17.09.2020, classified as
"critical
irregularities"
under
Guidelines.
Petitioner's defence that tampering occurred
during software upgradation by M/s GVR
engineer
(16.09.2020)
not
considered
by
authorities, violating natural justice. No evidence
showed petitioner's unauthorized access to
equipment post-GVR intervention. Single Judge
correctly
quashed
termination
order
(05.10.2021) and appellate order (07.04.2022)
for failing to address petitioner's defence,
without remanding for fresh appraisal due to
potential evidence tampering. Scope of judicial
review under Article 226 limited but warranted
due to procedural unfairness. (Paras 18-26)
158 INDIAN LAW REPORTS ALLAHABAD SERIES
Special Appeal Dismissed.

List of Cases cited:

1. Board of High School and Intermediate
Education, U.P. Vs Kumari Chitra Srivastava,
(1970) 1 SCC 121 (Para 22)

2. M/s Chaudhary Filling Point Vs St. of U.P.,
2019 (3) ADJ 345 (Para 24)

3. Savitri Devi Vs U.O.I., Writ-C No. 29859 of
2017, decided on 13.07.2017 (Para 17)

4. Writ-C No. 50151 of 2017, decided on
22.03.2018 (Para 17)

(Delivered by Hon'ble Siddhartha Varma, J.
&
Hon'ble Manoj Bajaj, J.)

1. The petitioner/respondent in the
instant Appeal was a retail outlet by the
name of M/s Modern Service Station. It
was appointed a dealer in terms of
petrol/HSD
Pump
Dealer
Agreement
executed between the petitioner and the
Indian Oil Corporation on 11.4.2011. The
petitioner's retail outlet had two dispensing
units which were manufactured by M/s.
Gilbarco Veeder Root (hereinafter referred
to as "M/s GVR"). As per the Rules, the
Dispensing Units had to be periodically
stamped by the manufacturer and by the
Weights and Measures Department and on
23.3.2019 the Weights and Measures
Department had given its report as
"Dispensing Unit is OK". Similarly on
19.4.2019
also
with
regard
to
the
Dispensing Units a report was given that
"dispensing unit is ok so no need for
calibration".

2. On 20.4.2019, after taking into
account all the reports, the Weights and
Measures Department issued a verification
certificate. Similarly on 14.1.2020, the
Sales Officers inspected and reported "No
variation in stocks".

3. In April 2020 again the stamping of
the two dispensing units was required and,
therefore, on 13.3.2020, the petitioner
deposited the required fees for the stamping
of the two dispensing units. In March 2020,
the pandemic of Covid - 19 broke and a
lock down was imposed nationwide and,
therefore, on 12.6.2020 a Government
Order was issued extending the validity of
the last existing "Stamping" till 30th
September 2020. The petitioner requested
the Weights and Measures Department on
13.9.2020 to grant permission to the M/s.
GVR engineer to break open the seal for
stamping/software upgradation which was
last done around a year back. On
15.9.2020, A.M Retail Sales, Mathura -I,
through Abhishek Sharma visited the
petitioner's retail outlet and issued verbal
directions for immediate stoppage of sales
from the dispensing units until the software
of the dispensing unit was upgraded and restamping was done. Subsequently, the
petitioner (respondent herein) stopped the
dispensation of the diesel from the
dispensing units.

4. On 16.9.2020 one Mr. Girendra,
the Authorized Service Engineer of M/s
GVR informed the petitioner that he had
obtained permission from the Weights and
Measures Department for breaking open
the seal of the two dispensing units for
software upgradation and for checking the
dispensing unit for annual re-stamping.

5. Mr. Girendra broke open the seal
and prepared an inspection report wherein
he had stated that both CPU Cards had
defect and that two new CPU Cards were
required for software upgradation. On
17.9.2020, the petitioner had expected the
4 All. Indian Oil Corporation Ltd. & Ors. Vs. M/S Modern Service Station,
 Yamunapar, Laxminagar, Mathura
159
M/s GVR personnel to return and to correct
the defect and also replace the two CPU
Cards and thereafter upgrade the software.
However, instead, on 17.9.2020 the Joint
Inspection Team visited the retail outlet
for allegedly conducting inspection of the
dispensing unit and as per the report of
the team the seals on the motherboard of
both the dispensing units were not
available and extra soldering with small
wire was found in both the motherboards.
The report thereafter stated that both the
motherboards had been taken out from
the dispensing unit in the presence of Sri
Raja
Babu
Bansal
(dealer's
representative) and, thereafter, they were
sealed and taken away.

6. On 21.9.2020, the petitioner
received written instructions from Sri
Abhishek Sharma, A.M. Retail Sales
Mathura
-
I,
of
the
Indian
Oil
Corporation Limited to stop the sales
from both the dispensing units.

7. On 8.10.2020, the petitioner
received a fact finding letter wherein it
was observed that as per the provisions of
the Marketing Discipline Guidelines,
2012
(amended
on
3.8.2018),
the
irregularities which were found in the
dispensing units of the petitioner's retail
outlet
were
termed
as
"critical
irregularities" and it was further observed
that penal action in the form of
termination of dealership was required.
To the fact finding report, the petitioner
put in a reply on 12.10.2020 and had
stated that after Mr. Girendra of M/s
GVR Engineering who had opened the
machine on 16.9.2020, the petitioner had
no control over the dispensing units and
that he was responsible for the tampering
with the machine. Paragraphs no. 3 and 4
of the reply dated 12.10.2020 being
relevant are being reproduced here as
under:

"3. it is to be noted here that it is
evidence that both the motherboards were
good in all respects and as such he could
update the software. We apprehend that in
this process of updating software some
short circuit could have occurred in both
the motherboards and he must have been
trying to rectify the motherboard by
soldering/extra wiring. The above act is
without our consent and our knowledge. He
left both the MPDU's with broken seals and
left the RO after preparing his inspection
report

4.
On
17.09.2020
A
Joint
Inspection with few officers (as described
in your subjected letter) visited at our RO.
They asked us to open both the MPDU's to
verify the work carried out by the engineer
Mr. Girendra who visited at our RO on
16.09.2020. We opened the MPDU's and it
was pointed out to us that the seals of the
motherboards are broken and are having
soldering and extra wire. We told the team
members that all these acts were carried out
by Mr. Girendra on his visit on 16.09.2020,
which we were totally not in our
knowledge. And we also told them that the
machine was in same condition for almost
26 hours as left by the fitter. This states that
we don't have any wrong intention. A
report was made by the members of the
team and we were made to sign on it."

8. From the perusal of paragraphs no.
3 and 4 of the reply, it is evident that the
petitioner
had
no
control
over
the
dispensing units as the same had been
opened by Mr. Girendra, the Engineer of
the M/s. GVR. The report as was submitted
by the Indian Oil Corporation on 17.9.2020
and on the basis of which the fact finding
report was submitted on 8.10.2020 was not
160 INDIAN LAW REPORTS ALLAHABAD SERIES
denied by the petitioner. Evidently, it had
only stated that the missing seal on the
motherboard, extra soldering with small
wires on both the motherboards were such
defects which had crept in because of the
opening of the units by Mr. Girendra, the
Engineer of the M/s GVR and that he
himself
was
responsible
for
any
tampering etc. The petitioner had insisted
that in view of clause 5.1.4 of the
Marketing Discipline Guidelines, which
was being used against the petitioner,
also had provided that in cases where
views and independent opinion of the
Original
Equipment
Manufacturer
(hereinafter referred to as "the OEM")
had to be obtained then they should be
taken and only then a suitable decision
could be taken. After the petitioner had
submitted his reply and the petitioner's
unit had been asked to be shut down, the
petitioner waited for some order to be
passed and when that was not done it
approached this Court by filing a writ
petition being Writ - C No. 23158 of
2020 (M/s Modern Service Station and 2
others vs. Union of India and 5 others)
which was disposed of by this Court by
means
of
order
dated
18.12.2020
directing the respondents to conclude the
pending enquiry initiated against the
petitioner
expeditiously,
preferably
within a period of 4 weeks. Thereafter a
Joint Inspection of the Retail Outlet was
once again conducted by the same team
which had conducted the inspection
previously on 17.9.2020.

9. This inspection was carried on
19.12.2020 once again in the presence of
Raja
Babu
Bansal,
the
authorized
representative of the petitioner and the
team once again noticed the very same
errors and it sealed the dispensing units and
collected the relevant parts of both the
dispensing units for further testing.

10. On 21.3.2021, a show cause
notice was issued to the petitioner by the
Indian Oil Corporation calling upon the
petitioner to explain within 15 days as to
why action should not be initiated against
the petitioner for the breach of Terms and
Conditions of the dealership agreement
and the Marketing Discipline Guidelines,
2012.

11. The show cause notice which
ran into 4 pages basically alleged that
there was tampering in the dispensing
unit of the petitioner which was in
violation of the dealership agreement
dated 11.4.2011 and the Marketing
Discipline Guidelines, 2012.

12. The petitioner submitted it's
reply on 21.6.2021 to the show cause
notice dated 21.3.2021 and the gist of the
reply was that it had carried on with the
dealership with utmost sincerity ever
since 11.4.2011. When they had obtained
the dealership they had run it with
unblemished track record. The petitioner
in the reply had denied any soldering etc.
and had also denied that it had put any
wire etc. on the motherboard. The
petitioner had only blamed the authorized
service engineer of M/s. GVR who had
visited the retail outlet of the petitioner
on 16.9.2020 for the upgradation of the
software and for the facilitating of the
stamping of the dispensing unit. The
paragraph 17 of he reply sent by the
petitioner on 21.6.2021 is relevant for the
purpose of this case wherein the petitioner
had alleged that everything irregular which
was found by the Indian Oil Corporation
was not done by the petitioner but by the
4 All. Indian Oil Corporation Ltd. & Ors. Vs. M/S Modern Service Station,
 Yamunapar, Laxminagar, Mathura
161
Engineer of M/s. GVR who had visited the
retail outlet on 16.9.2020.

13. In paragraph no. 22 of the reply
dated
21.6.2021,
the
petitioner
had
categorically stated that they had no
knowledge of what was done by the
Engineer of M/s. GVR, Sri Girendra. The
paragraph no. 22 of the reply is being
reproduced here as under: -

"22. In so far as the allegation
contained in the SCN (at page 2 & 3), that
we have accepted in our reply dt.
12.10.2020 about the broken DU seals,
soldering as well as extra wire in the DU, is
concerned, we wish to reiterate that we had
simply shared our opinion/ apprehension in
the peculiar factual conspectus of the
present case, which cannot be construed as
our admission. It is beyond our knowledge
as to what was done by the GVR Engineer -
Mr. Girendra on 16.09.2020 in the DUs. It
appeared to us (theoretically) that the GVR
Engineer might have placed the alleged
soldering
and
extra
wire
on
the
motherboard while attempting to upgrade
its
software,
which
was
ultimately
unsuccessful. Therefore, it will be in the
Interest of Justice and fairness that an
explanation be sought from the GVR
Engineer, Mr. Girendra, instead of taking
action against us."

14. However upon considering the
show cause notice and the reply of the
petitioner, the dealership of the petitioner
was terminated vide order dated 5.10.2021.

15. This order was appealed against
under Section 8.9 of the Marketing
Discipline Guidelines 2012 and when the
same was dismissed on 7.4.2022, a writ
petition being Writ - C no. 13514 of 2022
was filed. This writ petition when was
allowed on 18.5.2023, the instant Special
Appeal has been filed.

16. Sri Anil Sharma, learned Senior
Counsel assisted by Sri Shrey Sharma
learned counsel for the appellants has
argued that :

(a). The learned Single Judge
erred when it entered into the decision
making
process
of
the
Indian
Oil
Corporation and submitted that the powers
of the High Court under Article 226 of the
Constitution of India with regard to
contractual matters is limited.

(b). Even if the decision making
process is looked into then it becomes
evident that the Engineer of M/s. GVR
when it had given its report had clearly
observed that there was manipulation in the
dispensing unit. The expert opinion of the
OEM i.e. M/s. GVR was against the
petitioner (respondent in the Appeal) and
that the expert opinion of the OEM was not
considered by the learned Single Judge.

(c). The finding of the learned
Single Judge that the principles of natural
justice were violated was also erroneous
inasmuch as the show cause notice was
given and the petitioner had replied and
thereafter the orders were passed.

(d). Under Clause 5.1.4 of the
Marketing Discipline Guidelines 2012,
independent opinion of the OEM i.e. M/s.
GVR was obtained and only on the opinion
of the OEM action was taken.

(e). Learned counsel for the
appellants further submitted that the
submission of the petitioner (respondent
herein) that the manipulation in the
dispensing unit could have been done by
the Engineer of the OEM sometime during
the inspection on 16.9.2020 was not
supported
by
any
material
evidence
available on record and he, therefore,
162 INDIAN LAW REPORTS ALLAHABAD SERIES
submits that the learned Single Judge had
placed a negative burden on the appellants
to prove allegations made by the dealer
(respondent herein).

(f). Learned Single Judge
had not considered the fact that the
manipulation in the cards would lead to
affected delivery of petroleum products
from the dispensing units and that there
was no occasion for the service engineer to
make any addition/alteration during the
inspection dated 16.9.2020. He submits that
the dealer alone stood to benefit from any
addition/modification/tampering which was
done to the dispensing unit.

(g). Learned counsel for the
appellants has submitted that even if the
report dated 16.9.2020 is perused, it
becomes clear that the Engineer of M/s.
GVR had found that both the CPU Cards in
both the dispensing units were found
defective.

17. Learned counsel for the appellants
has further to bolster his arguments relied
upon a judgement of this Court dated
13.7.2017 passed in Writ - C No. 29859 of
2017 (Savitri Devi and 2 others v. Union of
India and 4 others) and has supported his
submissions. For a similar purpose, he
relied upon the judgement of this Court
passed on 22.3.2018 in Writ - C No. 50151
of 2017.

18. Learned counsel for the petitioner
(respondents here) Ms. Shreya Gupta has
opposed the Special Appeal and has
supported the order passed by the learned
Single Judge. She has submitted that the
learned Single Judge had very correctly
allowed the writ petition basing his
judgement on the fact that the defence
raised by the petitioner (respondent here)
regarding the visit of the M/s. GVR
Engineer on 16.9.2020 was not considered
at all. She submits that during the visit on
16.9.2020 vital pieces of evidence were lost
which were not considered at the time of
the termination of the dealership and this
was, she submits, in gross-violation of the
principles of natural justice. She had further
submitted that the information regarding
the vital piece of evidence which was in
possession of the engineer was not a part of
the procedure but it related to the merits of
the case. She submits that when on
16.9.2020, the engineer of M/s. GVR Mr.
Girendra came at the petitioner' retail
outlet and broke open the seal of the
dispensing units and fiddled with the units
for upgrading them then it could safely be
said that the dispensing units were no
longer in the guardianship of the dealers.
Instead they were now being looked after
by the Engineer of M/s. GVR who had
broken the seal and had fiddled with the
CPU Cards etc.

19.

Learned
counsel
for
the
petitioner(respondent here) submitted that
when this submission/argument was made
in the reply to the show cause notice then
the Indian Oil Corporation did not care to
include the M/s. GVR's Engineer in the
decision making process.

20. Learned counsel for the petitioner
(respondent here) has submitted that
learned Single Judge, therefore, had found
that when issues raised by the petitioners
were not dealt with then there was actual
violation of the principles of natural justice.
She submits that "fair hearing" and
"opportunity of hearing" during the enquiry
proceedings would be meaningless in case
the Enquiry Officer does not consider the
submissions which were raised in defence
by the person who was being proceeded
against. She submits that the learned Single
Judge
had
clearly
found
that
the
4 All. Indian Oil Corporation Ltd. & Ors. Vs. M/S Modern Service Station,
 Yamunapar, Laxminagar, Mathura
163
opportunity of hearing would include due
consideration of all defences raised by a
person who was being proceeded against
and, therefore, the learned counsel for the
respondents states that if the Disciplinary
Authority failed to consider the reply then
it was a clear violation of the principles of
natural justice.

21. Learned counsel for the petitioner
has further submitted that before the unit
was sealed there was absolutely no
complaint from any quarter with regard to
the volume of dispensation.

22.

Learned
counsel
for
the
respondent-petitioner further argued that if
there is violation of principles of natural
justice then that itself becomes a ground for
allowing the writ petition. She has relied
upon the decision of The Board of High
School and Intermediate Education, U.P.
and others vs. Kumari Chitra Srivastava
and Others reported in 1970 (1) SCC 121
and has argued that the Principles of natural
justice are to some minds burdensome but
this price - a small price indeed - has to be
paid if we desire the society to be governed
by the rule of law. Since the learned
counsel
has
specifically
relied
upon
paragraphs no. 7 and 8 of the aforesaid
judgement, they are being reproduced here
as under:-

"7.The learned counsel for the
appellant, Mr. C. B. Agarwala, contends
that the facts are not in dispute and it is
further clear that no useful purpose would
have been served if the Board had served a
show-cause notice on the petitioner. He
says that in view of these circumstances it
was not necessary for the Board to have
issued a show-cause notice. We are unable
to accept this contention. Whether a duty
arises in a particular case to issue a show
cause notice before inflicting a penalty
does not depend on the authority's
satisfaction that the person to be penalised
has no defence but on the nature of the
order proposed to be passed.

8. We agree with the High Court
that the impugned order imposed a penalty.
The petitioner had appeared in the
examination and answered all the question
papers. According to her she had passed.
To deny her the fruits of her labour cannot
but be called a penalty. We are unable to
appreciate the contention that the Board in
"cancelling her examination" was not
exercising quasi-judicial functions. The
learned counsel urges that this would be
casting a heavy burden on the Board.
Principles of natural justice are to some
minds burdensome but this price-a small
price indeed-has to be paid if we desire a
society governed by the rule of law. We
should not be taken to have decided that
this rule will also apply when a candidate is
refused admission to an examination. We
are not concerned with this question and
say nothing about it. "

23. Learned counsel also had
submitted that the case may not be
remanded back for considering the case as
might be put forth by the engineer of the
M/s GVR. She submits that the evidence
having not been put in sealed cover must
have by now been fiddled by all and
sundry.

24. Having considered the rival
submissions of the parties, we are definitely
of the view that the learned Single Judge
while dealing with the case of the petitioner
correctly came to the conclusion that when
a particular defence which was taken by the
petitioner was not considered then that
itself becomes a violation of the principles
of natural justice. In the instant case, the
164 INDIAN LAW REPORTS ALLAHABAD SERIES
petitioner had taken a definite stand that
when on 16.9.2020, the engineer of M/s.
GVR Mr. Girendra had opened the unit
and had broken the seal then the
dispensing unit was no longer in the
control of the petitioner/respondents and
there was every possibility of the seal
being tampered and the unit being fiddled
with by the engineer of M/s. GVR Mr.
Girendra. When the defence of the
petitioner was not considered the learned
Single Judge correctly came to the
conclusion
that
the
petitioner
was
wronged inasmuch as there was a definite
violation of principles of natural justice.
Also the learned Single Judge rightly put
an end to the matter and did not remand
the case for a fresh appraisal. He,
therefore, rightly relied upon the decision
in
M/s
Chaudhary
Filling
Point,
Kazipur through its Prop. And another
vs. State of U.P. through Prin. Secy.
Food & Civil Supplies and Ors.
reported in 2019 (3) ADJ 345 the relevant
paragraph no. 39 is being reproduced here
as under:

"39. As seen from the reading of
the impugned order, the only reason
assigned for being not satisfied with the
explanation offered by the petitioner was
that there was tampering in the DU and
pulsar card contains certain soldering
marks.
However,
what
was
not
considered by the competent authority
was that at what point of time this
unauthorized
tampering/soldering
was
done in the dispensing unit and how the
dealer is manipulating the distribution of
fuel. No material, much less credible one
has been brought on record by the
respondents to disclose the unauthorized
access to the equipment by the petitioner.
It was specific stand of the petitioner that
periodically
the
Weights
and
Measurements
Department
officials
inspected the seals and they were found
to be intact. Further more, what is the
impact on tampering/soldering in delivery
unit is not disclosed. How the dealer can
manipulate delivery of fuel by inserting
such unit is not explained. The only
objective of a dealer to tamper with
dispensing unit is to manipulate delivery
of fuel. In this case, the delivery of fuel
was found to be accurate prior to
checking of unit and after the checking.
Furthermore, the defence of the petitioner
that it is possible that the supplier himself
might
have
done
soldering
while
repairing for proper functioning of the
unit by supplier himself cannot be
brushed aside."

25. This Appellate Court, thus, finds
that when the main defence of the
petitioner that i.e. the tampering was, in
fact, a result of the act of the Original
Equipment Manufacturer and that the
petitioner had no hand in it was not
considered then definitely the petitioner's
interest was prejudiced.

26. We are thus of the view that the
writ petition was rightly allowed and the
matter was also rightly not remanded
back. This we say as the appellants
definitely had not been able to bring on
record any fact by which it could be
ascertained that the dealer had an
authorized access to the equipment after
the M/s GVR engineer had opened the
dispensing unit and had fiddled with the
motherboard and that the dealer was in
any way responsible for the tampering
etc.

27. For the reasons stated above, the
Special Appeal stands dismissed.
----------
4 All. Smt. Kavita Tiwari Vs. State of U.P. Ors.
165
(2024) 4 ILRA 165
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 04.04.2024

BEFORE

THE HON'BLE ABDUL MOIN, J.

Writ A No. 556 of 2022

Smt. Kavita Tiwari ...Petitioner
Versus
State of U.P. Ors. ...Respondents

Counsel for the Petitioner:
Tushar Verma, Prashant Kumar Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Compassionate
Appointment - Eligibility of Married Daughter
- Petitioner, a married daughter of a deceased
government servant, challenged the rejection of
her claim for compassionate appointment under
the
U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness Rules,
1974 - Held, the rejection based on her marital
status was unsustainable, as the Division Bench
in Smt. Vimla Srivastava Vs St. of U.P. held
that a married daughter's claim cannot be
rejected solely on the ground of marital status
under the Rules, 1974 - The respondents'
reliance on St. of U.P. Vs Madhavi Mishra ,
which pertained to Regulations, 1995, was
inapplicable. (Paras 6, 10, 19, 20)

B.
Service
Law
-
Compassionate
Appointment - Employment of Other Family
Members - The respondents rejected the
petitioner's
claim
citing
her
brothers'
employment as Lekpals - Held, under Rule 5(1)
of the Rules, 1974, as amended in 1999,
compassionate appointment is barred only if the
surviving spouse is in government service, not if
other family members like siblings are employed
- Kumari Nisha Vs St. of U.P. clarified that a
sibling's
employment
does
not
preclude
compassionate appointment, as their earnings
are for their own family - This ground was
legally untenable. (Paras 8, 11, 21, 22)
C.
Service
Law
-
Compassionate
Appointment - Pension and Financial Benefits
- The respondents argued that the petitioner's
mother receiving pension and retiral benefits
disqualified the petitioner's claim - Held, the
Rules, 1974 do not stipulate financial benefits as
a bar to compassionate appointment - Pramod
Kumar Rajak Vs Registrar General High Court
Allahabad confirmed that receipt of pensionary
benefits does not disentitle a family member
from seeking compassionate appointment - This
ground was rejected. (Paras 8, 12, 23)

D.
Service
Law
-
Compassionate
Appointment - Dependency Requirement -
The respondents contended in their counter
affidavit that the petitioner was not dependent
on her deceased father - Held, Rule 2(c) and
Rule 5 of the Rules, 1974 define "family" to
include a married daughter and do not mandate
dependency on the deceased employee as a
condition for compassionate appointment - The
respondents could not impose an extra-statutory
requirement of dependency to deny the
petitioner's claim. (Paras 9, 13, 24)

E.
Judicial
Review
-
Relief
in
Compassionate Appointment Cases -
The
respondents'
rejection
order
dated
25.10.2021
was
based
on
grounds
inconsistent with the Rules, 1974 and prior
judicial precedents - Held, the order was
legally unsustainable due to misapplication of
law and failure to adhere to the Division
Bench's ruling in Smt. Vimla Srivastava -
The writ petition was allowed, the impugned
order was quashed, and the respondents
were directed to reconsider the petitioner's
claim within two months in accordance with
the law. (Paras 14, 17, 25)

Writ Petition Allowed.
Impugned Order Dated 25.10.2021 Quashed -
Respondents Directed to Reconsider Petitioner's
Claim for Compassionate Appointment.

List of Cases cited:

1. Smt. Vimla Srivastava Vs St. of U.P., Writ A
No. 60881 of 2015, decided on 04.12.2015

2. St. of U.P. Vs Madhavi Mishra, Special Appeal
No. 223 of 2021