# Indra Kumar v. Union of India & Ors

- **Citation:** (2014) 3 ILRA 1156
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2014-08-04
- **Case number:** Civil Misc. Writ Petition No. 69033 of 2010
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/indra-kumar-v-union-of-india-ors-43111
- **Pages:** 7

## Headnote

Constitution
of
India,
Art.-226compassionate appointment-scheme with
ex-gratia
payment
of
Rs.
9,50,000/-
framed-petitioner
opted
compassionate
appointment-petition after unreasonable
delay of 12 years-held-no direction for
appointment can be given-if petitioner
claims for ex-gratia payment be considered
as per existing scheme.

Held: Para-14
This petition was filed in the year 2010,
whereas, the father of the petitioner died
on 11.9.1998 thus is a belated petition.
Considering the fact that the father of
the petitioner had already died in 1998
and the application was kept pending
would
not
attract
the
principle
of
legitimate expectation. The authorities
of the bank kept corresponding with the
petitioner and also gave a choice for
compassionate appointment or ex-gratia
payment would not create a vested right
in
the
petitioner.
The
policy
for
compassionate
appointment
was
scrapped and a new policy of ex-gratia
payment in lieu of appointment on
compassionate ground was formulated,
the case of the petitioner can be
considered as per the policy in force on
the date on which the petitioner's
application would be considered. The
petitioner
has
not
explained
satisfactorily, as to why, the petitioner
has approached the Court after twelve
years. The petitioner is entitled to get his
application
for
ex-gratia
payment,
considered as per the existing scheme.

Case Law discussed:
[(2010) 11 SCC 661]; Special Appeal No. 14 of
2007; (2004) 7 SCC 271; (2007) 7 SCC 265;
(2008) 11 SCC 384; 2012 STPL(Web) 320 SC ;
(2007) 4 SCC 778; (2007) 11 SCC 40; (1999) 7
SCC 314; (2006) 5 SCC 702; 2003 (7) SCC
270; [2006(5) SCC 702]; (2010)11 SCC 661;
2014(2) ADJ (FB).

## Text

1156 INDIAN LAW REPORTS ALLAHABAD SERIES
become infructuous and it may be
directed to be consigned to records.

15.

Accordingly,
Contempt
Application No. 2225/2014 shall be
treated to have become infructuous and it
shall be consigned to records for which a
copy of this order shall be placed on the
records of the contempt application.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2014

BEFORE
THE HON'BLE SUNEET KUMAR, J.

Civil Misc. Writ Petition No. 69033 of 2010

Indra Kumar ...Petitioner
Versus
Union of India & Ors. ...Respondents

Counsel for the Petitioner:
Sri Siddharth Khare, Sri R.B. Singh

Counsel for the Respondents:
A.S.G.I. Sri Ashish Kumar Srivastava
Sri Tarun Verma

Constitution
of
India,
Art.-226compassionate appointment-scheme with
ex-gratia
payment
of
Rs.
9,50,000/-
framed-petitioner
opted
compassionate
appointment-petition after unreasonable
delay of 12 years-held-no direction for
appointment can be given-if petitioner
claims for ex-gratia payment be considered
as per existing scheme.

Held: Para-14
This petition was filed in the year 2010,
whereas, the father of the petitioner died
on 11.9.1998 thus is a belated petition.
Considering the fact that the father of
the petitioner had already died in 1998
and the application was kept pending
would
not
attract
the
principle
of
legitimate expectation. The authorities
of the bank kept corresponding with the
petitioner and also gave a choice for
compassionate appointment or ex-gratia
payment would not create a vested right
in
the
petitioner.
The
policy
for
compassionate
appointment
was
scrapped and a new policy of ex-gratia
payment in lieu of appointment on
compassionate ground was formulated,
the case of the petitioner can be
considered as per the policy in force on
the date on which the petitioner's
application would be considered. The
petitioner
has
not
explained
satisfactorily, as to why, the petitioner
has approached the Court after twelve
years. The petitioner is entitled to get his
application
for
ex-gratia
payment,
considered as per the existing scheme.

Case Law discussed:
[(2010) 11 SCC 661]; Special Appeal No. 14 of
2007; (2004) 7 SCC 271; (2007) 7 SCC 265;
(2008) 11 SCC 384; 2012 STPL(Web) 320 SC ;
(2007) 4 SCC 778; (2007) 11 SCC 40; (1999) 7
SCC 314; (2006) 5 SCC 702; 2003 (7) SCC
270; [2006(5) SCC 702]; (2010)11 SCC 661;
2014(2) ADJ (FB).

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

1. Heard learned counsel for the
petitioner
and
Sri
Ashish
Kumar
Srivastava, learned counsel appearing for
the respondents.

2. The father of the petitioner was
working as a Class-IV employee with
respondent-bank and died in harness on
11.9.1998. The mother of the petitioner
made a request on 12.11.1998 for
compassionate appointment. The matter
was kept pending on one pretext or the
other and no decision was taken, however,
the petitioner received a letter on 3.2.2005
directing him to appear for interview on
14.2.2005 and by letter dated 30.7.2005
the petitioner was given an option either
to accept Rs. 9,50,000/- towards ex-gratia
payment or compassionate appointment.
3 All]. Indra Kumar Vs. Union of India & Ors.
1157
The petitioner by his letter dated 19.11.2010
requested for compassionate appointment in
lieu of compensation but no decision was
taken on petitioner's application. Aggrieved
the petitioner approached the Court by filing
the present writ petition. In the meantime, the
bank scraped the scheme for compassionate
appointment and formulated a scheme for
payment of ex-gratia amount in lieu of
appointment
on
compassionate
ground
which came into force w.e.f. 18th December,
2004 and as such the petitioner's claim was
not
considered
for
compassionate
appointment.

3. The submission of the learned
counsel for the petitioner is that despite
the scheme coming into force the
respondents had invited the petitioner for
interview and had also given him an
option either to opt for compassionate
appointment or for compensation. Hence
on the principle of legitimate expectation
the
petitioner
is
entitled
for
compassionate appointment. In support of
his submission learned counsel for the
petitioner relied upon State Bank of India
and another vs. Raj Kumar [(2010) 11
SCC 661].

4. In rebuttal Sri Srivastava submits
that
the
scheme
for compassionate
appointment has since been scraped and
as per policy decision a formula has been
worked out for payment of ex-gratia
amount
in
lieu
of
compassionate
appointment. Till date the petitioner has
not applied for ex-gratia payment under
the new scheme, as and when the
petitioner approaches the respondent-bank
for ex-gratia amount, the same shall be
considered as per the prevailing scheme.
Since no decision was taken earlier,
therefore, the petitioner is not entitled for
compassionate appointment.

5. Rival submission fall for
consideration.

6. A Division Bench of this Court in
Special Appeal No. 14 of 2007 (State Bank
of India Vs. Ajai Kumar) decided on
21.11.2013, after considering the judgments
of the Supreme Court in (i) General Manager
(D&PB) and Others Vs. Kunti Tiwary and
Another; (2004) 7 SCC 271 (ii)Punjab
National Bank and Others Vs. Ashwini
Kumar Taneja; (2007) 7 SCC 265 (iii)
Mumtaz Yunus Mulani (Smt.) Vs. State of
Maharashtra and Others; (2008) 11 SCC 384
and (iv) Union of India & Anr. Vs. Shashank
Goswami & another 2012 STPL (Web) 320
SC, held that terminal benefits, which have
been given to the family of the deceased,
have to be duly taken into account while
considering the case of the petitioner for
compassionate appointment.

7. The bank has in the circumstances
duly considered the financial position of the
family of the deceased employee and it is
beyond the scope of judicial review under
Article 226 of the Constitution of India for
the High Court to undertake the exercise to
decide as to what would be the reasonable
income which would be sufficient for a
family for its survival and whether it had
not been left in penury or without any
means of livelihood.

8. In State Bank of India Vs.
Somveer Singh (2007) 4 SCC 778, the
Supreme
Court
held
that
financial
condition of the deceased employee's
family should be the important criterion
for
eligibility
of
compassionate
appointment. The High Court cannot
undertake any exercise to decide as to
what would the reasonable income, which
would be sufficient for the family, for its
survival and whether his family is in
1158 INDIAN LAW REPORTS ALLAHABAD SERIES
penury
or
without
any
means
of
livelihood. The High Court can only
advert to itself to review the decision
making process.

9. It is settled principle of law that
rules, regulation, scheme or policy as
applicable on the date of passing of the
order shall be applicable and not that was
applicable on the date of filing of
application.
(Vide
Commissioner
Municipal Corporation, Shimla vs. Prem
Lata Sood and others (2007) 11 SCC 40,
Union of India and others vs. Indian
Charge Chrome and Another (1999) 7
SCC 314, Kuldeep Singh vs. Govt. of
NCT of Delhi (2006) 5 SCC 702).

10. In this context I may usefully refer
to the decision of Supreme Court in Union of
India vs. R. Padmanabhan 2003 (7) SCC
270, wherein this Court observed:

"That apart, being ex gratia, no right
accrues to any sum as such till it is
determined and awarded and, in such
cases, normally it should not only be in
terms of the Guidelines and Policy, in
force, as on the date of consideration and
actual grant but has to be necessarily
with
reference
to
any
indications
contained in this regard in the Scheme
itself. The line of decisions relation to
vested rights accrued being protected
from any subsequent amendments may not
be relevant for such a situation and it
would be apposite to advert to the
decision of this Court reported in State of
Tamil Nadu vs. Hind Stone and Ors. -
1981 (2) SCC 205. That was a case
wherein this Court had to consider the
claims of lessees for renewal of the Tamil
Nadu Minor Mineral Concession Rules,
1959. The High Court was of the view
that it was not open to the State
Government to keep the time and then
depose them of on the basis of a rule
which had come into force later. This
Court, while reversing such view taken by
the High Court, held that in the absence
of any vested rights in anyone, an
application for a lease has necessarily to
be dealt with according to the rules in
force on the date of the disposal of the
application, despite the delay, if any,
involved although it is desirable to
dispose
of
the
applications,
expeditiously."

11. Reference may also be made to
the decision of Supreme Court in Kuldeep
Singh vs. Government of NCT of Delhi
[2006 (5) SCC 702] which considered the
question of grant of liquor vent licences.
The Supreme Court held that where
applications required processing and
verification the policy which should be
applicable is the one which is prevalent
on the date of grant and not the one which
was prevalent when the application was
filed. The Apex Court clarified that the
exception to the said rule is where a right
had already accrued or vested in the
applicant, before the change of policy.

12. The Supreme Court in State Bank
of India and another Versus Raj Kumar
(2010) 11 SCC 661 held that an
appointment under the scheme can be made
only if the scheme is in force and when a
scheme
is
abolished,
any
pending
application seeking appointment under the
scheme will also cease to exist unless saved.
The mere fact that the application was made
when the scheme was in force, will not by
itself create a right in favour of the
applicant. Paragraph 6 is as follows:-

"6. It is now well settled that
appointment on compassionate grounds is
3 All]. Indra Kumar Vs. Union of India & Ors.
1159
not a source of recruitment. On the other
hand it is an exception to the general rule
that recruitment to public services should
be on the basis of merit, by an open
invitation providing equal opportunity to
all eligible persons to participate in the
selection process. The dependants of
employees, who die in harness, do not have
any special claim or right to employment,
except by way of the concession that may be
extended by the employer under the Rules or
by a separate scheme, to enable the family of
the deceased to get over the sudden financial
crisis.
The
claim
for
compassionate
appointment is therefore traceable only to
the scheme framed by the employer for such
employment and there is no right whatsoever
outside such scheme. An appointment under
the scheme can be made only if the scheme is
in
force
and
not
after
it
is
abolished/withdrawn. It follows therefore
that when a scheme is abolished, any
pending application seeking appointment
under the scheme will also cease to exist,
unless saved. The mere fact that an
application was made when the scheme was
in force, will not by itself create a right in
favour of the applicant."

13. Full Bench of this Court in
Anand Kr. Sharma versus State of U.P
and others 2014(2) ADJ (FB) was
considering
whether
application
for
freehold right would be considered as per
the policy existing on the date of
application or as per the amended policy
while deciding the application. It was held
that mere making of application one does
not acquire any vested right and if there is
change
of
policy,
no
question
of
legitimate expectation arises. Paras 30,
32, 37 are as follows:

"30. For the above it is clear that
legitimate expectation may arise :

(a) if there is an express promise
given by a public authority; or

(b) because of the existence of a
regular practice which the claimant can
reasonably expect to continue ; or

(c) Such an expectation must be
reasonable.

However, if there is a change in
policy or in public interest the position is
altered by a rule or legislation, no
question of legitimate expectation would
arise."

32. A Three judges' bench in P.T.R.
Exports (Madras) Pvt. Ltd. & Ors. Vs.
Union of India & Ors, (1996) 5 SCC 268,
had occasion to consider the concept of
"legitimate expectation" in context of
change of policy. In the above case, the
petitioners before the Apex Court were
exporters of ready-made garments to
several countries. The Government of
India, Ministry of Commerce had evolved
Export and Import policy in the year
1992-93.
New
export
policy
w.e.f.
01/1/1996 was introduced withdrawing
the previous policy. The petitioners
challenged the change of policy in the
High
Court
which
challenge
was
negatived by the High Court. Before the
Apex Court, the Special Leave Petitions
were filed. In the above case, the Apex
Court held that the applicant has no
vested right in respect of import and
export licences in terms of the policies in
force on the date of making his
application. It was further held that the
Government is not barred by the promises
or
of
legitimate
expectations
from
evolving new policy. Following was laid
down in paragraphs 3, 4 and 5 of the said
judgment which are quoted below:
1160 INDIAN LAW REPORTS ALLAHABAD SERIES

"3. In the light of the above policy
question emerges whether the Government is
bound by the previous policy of whether it
can revise its policy in view of the changed
potential foreign markets and the need for
earning foreign exchange? It is true that in a
given set of facts, the Government may in the
appropriate case be hound by the doctrine of
promissory estoppel evolved in Union of
India v. Indo-Afghan Agencies Ltd.(1968) 2
SCR 366. But the question revolves upon the
validity of the withdrawal of the previous
policy and introduction of the new policy.
The doctrine of legitimate expectations again
requires to be angulated thus : whether it
was revised by a policy in the public interest
or the decision is based upon any abuse of
the power? The power to lay policy by
executive decision or by legislation includes
power to withdraw the same unless in the
former case, it is by mala fide exercise of
power or the decision or action taken is in
abuse of power. The doctrine of legitimate
expectation plays no role when the
appropriate authority is empowered to take a
decision by an executive policy or under law.
The Court leaves the authority to decide its
full range of choice within the executive or
legislative power. In matters of economic
policy, it is a settled law that the Court gives
the large leeway to the executive and the
legislature. Granting licences for import or
export is by executive or legislative policy.
Government would take diverse factors for
formulating the policy for import or export of
the goods granting relatively greater
priorities to various items in the overall
larger interest of the economy of the country.
It is, therefore, by exercise of the power
given to the executive or as the case may be,
the legislature is at liberty to evolve such
policies.

4. An applicant has no vested right to
have export or import licences in terms of
the policies in force at the date of his
making application. For obvious reasons,
granting of licences depends upon the
policy prevailing on the date of the grant
of the licence or permit. The authority
concerned may be in a better position to
have the overall picture of diverse factors
to grant permit or refuse to grant
permission to import or export goods. The
decision, therefore, would be taken from
diverse economic perspectives which the
executive is in a better informed position
unless, as we have stated earlier, the
refusal is mala fide or is an abuse of
power in which event it is for the
applicant to plead and prove to the
satisfaction of the Court that the refusal
was vitiated by the above factors. .

5. It would, therefore, be clear that
grant of licence depends upon the policy
prevailing as on the date of the grant of
the licence. The Court, therefore, would
not bind the Government with a policy
which was existing on the date of
application as per previous policy. A
prior decision would not bind the
Government for all times to come. When
the Government are satisfied that change
in the policy was necessary in the public
interest, it would be entitled to revise the
policy and lay down new policy. The
Court, therefore, would prefer to allow
free play to the Government to evolve
fiscal policy in the public interest and to
act
upon
the
same.
Equally,
the
Government is left free to determine
priorities in the matters of allocations or
allotments or utilisation of its finances in
the public interest. It is equally entitled,
therefore, to issue or withdraw or modify
the export or import policy in accordance
with the scheme evolved. We, therefore,
hold that the petitioners have no vested or
accrued right for the issuance of permits
3 All]. Indra Kumar Vs. Union of India & Ors.
1161
on the MEE or NQE, nor the Government is
bound by its previous policy. It would be
open to the Government to evolve the new
schemes and the petitioners would get their
legitimate expectations accomplished in
accordance with either of the two schemes
subject to their satisfying the conditions
required in the scheme. The High Court,
therefore, was right in its conclusion that
the Government are not barred by the
promises or legitimate expectations from
evolving new policy in the impugned
notification."

37. A Division Bench of this Court in
which one of us (Ashok Bhushan, J.) was
a member in 2013 (2) ADJ 166 Nar
Narain Misra Vs. State of U.P. and
others, also considered the similar
submissions in context of the U.P. Minor
Minerals
Concession
Rules
1963.
Applications were made by several
applicants for grant of mining lease under
Chapter II of the Rules. The applications
remained pending. The State Government
issued
a
Government
Order
dated
31.5.2012 by which all vacant area was
notified under Chapter III i.e. for
settlement of right by auction/tenders. The
writ petitions were filed by the applicants
seeking a mandamus that respondents
may be directed to consider their
applications for grant of mining lease and
the Government Order dated 31.5.2012
declaring the area under Chapter II be
not applied in their cases. Submission was
made that Government Order dated
31.5.2012 at best shall apply to the area
which fall vacant subsequent to the
Government Order. Negativating the said
submissions, following was laid down by
the Division Bench in paragraph 46:

"46.
In
view
of
the
above
pronouncement of the apex Court, it is
clear
that
the
applicants
whose
application for renewal is pending cannot
claim that their application for renewal
be considered under Chapter II and those
areas be kept out of purview of the
Government order dated 31.5.2012. The
areas having been declared under Rule
23(1), the provisions of Chapter II under
which renewal of lease can be granted
becomes inapplicable. The new state of
affairs which have been brought into
existence by declaration under Rule 23(1)
has to be given its full effect and no rider
or exception can be read specially when
the Government Order dated 31.5.2012
does not contemplate any such exception.
Thus, the submission of the applicants
that their renewal applications which
were pending at the time of issuance of
declaration
on
31.5.2012
shall
be
considered according to Chapter II
cannot be accepted and the areas in
respect of which the applications for
renewal were pending on 31.5.2012,
cannot be said to be not vacant."

14. This petition was filed in the
year 2010, whereas, the father of the
petitioner died on 11.9.1998 thus is a
belated petition. Considering the fact that
the father of the petitioner had already died in
1998 and the application was kept pending
would not attract the principle of legitimate
expectation. The authorities of the bank kept
corresponding with the petitioner and also
gave
a
choice
for
compassionate
appointment or ex-gratia payment would not
create a vested right in the petitioner. The
policy for compassionate appointment was
scrapped and a new policy of ex-gratia
payment in lieu of appointment on
compassionate ground was formulated, the
case of the petitioner can be considered as
per the policy in force on the date on which
the
petitioner's
application
would
be
considered. The petitioner has not explained
1162 INDIAN LAW REPORTS ALLAHABAD SERIES
satisfactorily, as to why, the petitioner has
approached the Court after twelve years. The
petitioner is entitled to get his application for
ex-gratia payment, considered as per the
existing scheme.

15. In the facts and circumstances of
the case, the petitioner is not entitled for
compassionate
appointment,
as
the
scheme no longer exists, however, in
event, the petitioner approaches the
respondent-bank by making an application
in the prescribed form for payment of exgratia amount in lieu of compassionate
appointment, the respondent-bank shall
consider
the
application
and
pass
appropriate orders within three months from
the date of filing of certified copy of this
order along with the application form.

16.

Subject
to
the
above
observations, the writ petition is disposed
of.
--------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.01.2014

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 70123 of 2013

Goharwa Kukkut Palan Sahkari Samiti
Ltd. ...Petitioner
Versus
Board of Revenue & Ors. ...Respondents

Counsel for the Petitioner:
Sri L.P. Singh, Sri Brajesh Singh

Counsel for the Respondents:
C.S.C.

U.P. Z.A. & L.R. Rules 1952-Rule 172(i)
read with U.P. Imposition of ceiling on
Land
Holding
Act
1960-Section
27cancellation of lease-relating to surplus
land-can be only by the commissioner
and not by S.D.O.-under Section 198(1)
of
U.P.Z.A
Act-even
order
without
following
procedure
contained
Rule
172(1)-held-order without jurisdiction.

Held: Para-25
It is settled that when the statute provides
to do a thing in a particular manner, then
that thing has to be done in that very
manner.Here sub-rule (1) of Rule 172 of the
Rules
of
1952
provides
that
before
extinction of the right of a tenure holder, he
has to be noticed and the notice part is
missing.Therefore, the order impugned has
been passed against the statute itself,
under which power has been exercised.

Case Law discussed:
(2008 (1) Supreme 290).

(Delivered by Hon'ble Ran Vijay Singh, J.)

1. Heard Sri L.P. Singh, learned
counsel for the petitioner and Sri Sanjay
Goswami,
learned
Additional
Chief
Standing Counsel appearing for the Staterespondents.

2. Learned Additional Chief Standing
Counsel does not propose to file any
counter affidavit and states the this writ
petition itself may be decided on its own
merit on the basis of the existing facts.

3. the consent of learned counsel for
the parties, the writ petition is taken up
for final disposal.

4. By means of this writ petition, the
petitioner has prayed for issuing a writ of
certiorari quashing the order dated 20.7.2009
passed by the Sub Divisional Officer, Banda
in case no. 1 of 2008-09 and order dated
14.1.2013 passed by the Board of Revenue,
U.P. at Allahabad in revision no. 62 of 200809.