# Km. Himani Saxena v. State of U.P. and another

- **Citation:** (2010) 1 ILRA 340
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2010-04-20
- **Case number:** Civil Misc. Writ Petition No. 64129 of 2006
- **Bench:** Ran Vijai Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/km-himani-saxena-v-state-of-u-p-and-another-41477
- **Pages:** 4

## Headnote

C.S.C.

U.P.
Recruitment
of
Dependants
of
Government Servant Dying in harness
Rules 1974-Rule 5 (1)(ii)-compassionate
appointment-made after expiry of 5
years-petitioner who had lost her mother
and father-cancellation on ground after
expiry of 5 years-No appointment could
be made without exemption from Govt.-
held-once
appointment
on
compassionate
ground-can
not
be
canceled without affording opportunityseeking exemption-sole task given of
appointing authority-mere irregularlycan
be
cured-cancellation
of
appointment-held illegal quashed.

Held: Para 9 & 12

Here in the present case it is apparent on
the face of record that no opportunity
was given to the petitioner before
passing the impugned order, therefore,
the impugned order is unsustainable in
the eye of law.

I
am
of
the
view
that
once
an
appointment has been considered on
merit and appointment letter has been
issued, the power of relaxation of period
of limitation shall fall under the category
of procedural irregularity, which may be
cured at any point of time after issuance
of appointment letter.
Case law discussed:
1999 (3) U.P.L.B.E.C. 2263, 2006 (8) ADJ 453,
1952 SCR 284; (1978) 1 SCC 248; (1978) 1
SCC 405, 1993,SCC 259.

## Text

340 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
merit in the petitions. The accordingly,
fail and are dismissed. No order as to
costs.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.04.2010

BEFORE
THE HON'BLE RAN VIJAI SINGH, J.

Civil Misc. Writ Petition No. 64129 of 2006

Km. Himani Saxena

...Petitioner
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Pradeep Saxena

Counsel for the Respondents:
C.S.C.

U.P.
Recruitment
of
Dependants
of
Government Servant Dying in harness
Rules 1974-Rule 5 (1)(ii)-compassionate
appointment-made after expiry of 5
years-petitioner who had lost her mother
and father-cancellation on ground after
expiry of 5 years-No appointment could
be made without exemption from Govt.-
held-once
appointment
on
compassionate
ground-can
not
be
canceled without affording opportunityseeking exemption-sole task given of
appointing authority-mere irregularlycan
be
cured-cancellation
of
appointment-held illegal quashed.

Held: Para 9 & 12

Here in the present case it is apparent on
the face of record that no opportunity
was given to the petitioner before
passing the impugned order, therefore,
the impugned order is unsustainable in
the eye of law.

I
am
of
the
view
that
once
an
appointment has been considered on
merit and appointment letter has been
issued, the power of relaxation of period
of limitation shall fall under the category
of procedural irregularity, which may be
cured at any point of time after issuance
of appointment letter.
Case law discussed:
1999 (3) U.P.L.B.E.C. 2263, 2006 (8) ADJ 453,
1952 SCR 284; (1978) 1 SCC 248; (1978) 1
SCC 405, 1993,SCC 259.

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

1. The unfortunate petitioner who
has lost her father and mother both has
approached this Court under Article 226
of the Constitution of India, challenging
the impugned order dated 9th November,
2006 passed by District Panchayat Raj
Aadhikari
Bareilly,
by
which,
her
appointment
made
under
the
U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules 1974 (herein after referred to as
Rules of 1974) has been cancelled. It
appears the petitioner's father was Gram
Panchayat Aadhikari and while working
he died in harness on 28.8.1996. The
mother of the petitioner has died prior to
the death of her father. The petitioner who
was the only daughter of her parents, was
minor at the time of death of her father.
When she became major, she has applied
for compassionate appointment under the
Rules of 1974. Pursuant thereto, the
petitioner
has
been
appointed
vide
appointment letter dated 25th July, 2006
on the post of clerk. Thereafter the
petitioner has joined and started working.
But all of sudden, the impugned order
(dated 9.11.2006) of cancellation of
appointment has been passed on the
ground that the Rules of 1974 has been
amended in the year 1993 and in view of
Proviso to Rule 5 if the application for
compassionate appointment is made after
1 All] Km. Himani Saxena V. State of U.P. and another
341
expiry of five years then it is the State
Government which is competent to relax
the period of limitation whereas in this
case no such relaxation has been granted
by the State Government.

2. Sri Pradeep Saxena, learned
counsel appearing for the petitioner has
submitted that the appointment made
under
Dying
in
Harness
Rules
is
permanent in nature in view of the
Division Bench decision of the Court in
the case of Ravi Karan Singh Vs. State of
U.P and others reported in 1999 (3)
U.P.L.B.E.C.
2263
and
once
the
appointment has been made, this cannot
be
cancelled
without
affording
an
opportunity of hearing. He has further
contended that there was no fault of the
petitioner as she has been throughout fair
and nothing has been concealed by the
petitioner when she was appointed,
therefore the impugned order should not
have been passed. In support of his
submissions, he has also placed reliance
upon the judgment of this Court reported
in 2006 (8) ADJ 453 Smt. Sadhna
Kumari Vs. State of U.P. and others. In
his submissions, the impugned order
deserves to be quashed.

3. Refuting the submissions of
learned counsel for the petitioner, learned
standing counsel has submitted that in
view of the Proviso to Sub-rule 1 (iii) of
Rule 5 of the Rules 1974 if an application
for appointment under dying in harness
rules is made after expiry of five years
then it is the State Government which can
relax the period of limitation and in this
case, since the appointment has been
made without there being any order of the
State
government
with
respect
to
relaxation of period of limitation therefore
infirmity cannot be attached to the
impugned order dated 9.11.2006 and the
writ petition be dismissed.

4. I have heard learned counsel for
the parties and perused the record.

5. It is not in dispute that the
petitioner was offered an appointment on
25th July, 2006 and pursuant thereto the
petitioner has joined her duties and
worked for sometime. Since the initial
stage of making an application for
obtaining appointment on compassionate
ground to the date of joining there had
been no concealment of fact at any point
of time, on the part of petitioner therefore,
the question would arise whether the
petitioner's
appointment
could
be
cancelled in this manner.

In the case of Ravi Karan Singh
(supra) the Division Bench of this Court
has observed as under.

"In our opinion, an appointment
under the Dying in Harness Rules has to
be treated as a permanent appointment
otherwise if such appointment is treated
to be a temporary appointment then it will
follow that soon after the appointment the
service can be terminated and this will
nullify the very purpose of the Dying in
Harness Rule because such appointment
is intended to provide immediate relief to
the family on the sudden death of the
bread-earner. We therefore hold that the
temporary appointment and hence the
provisions
of
U.P.
Temporary
Government Servant (Termination of
Services) Rules, 1975 will not apply to
such appointments."

6. In view of the Division Bench
decision in the case of Ravi Karan Singh
(supra), an appointment offered under the
342 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
Rules of 1974 is permanent in nature. In
such view of the matter, I am of the
opinion that once an appointment letter is
issued, without attaching any condition,
the service of such person cannot be
terminated
without
any
notice
and
opportunity.

7. It is well settled that an order
which involves civil consequences must
be just, fair, reasonable, unarbitrary and
impartial with the principles of natural
justice. The main aim of the principle of
natural justice is to secure justice or to put
it negatively to prevent miscarriage of the
justice vide State of W.B. Vs. Anwar Ali
Sarkar, 1952 SCR 284; Maneka Gandhi
Vs. Union of India (1978) 1 SCC 248;
Mohinder Singh Gill Vs. Chief Election
Commissioner, (1978) 1 SCC 405 and
D.K. Yadav Vs. J.M.A. Industries Ltd.
reported in 1993, SCC 259;

8. These decisions have been
followed in numerous cases decided
thereafter which need not be detailed as
this is the established principle of law that
even an administrative order which leads
to civil consequences must be passed in
conformity with the rules of natural
justice.

9. Here in the present case it is
apparent on the face of record that no
opportunity was given to the petitioner
before passing the impugned order,
therefore,
the
impugned
order
is
unsustainable in the eye of law.

10. Otherwise also Rule 5 (1) (iii) of
the Rules of 1974 provides that if an
application
seeking
compassionate
appointment, is made after expiry of five
years, the power with respect to the
relaxation of period of limitation is vested
with the State government. The proviso
further
provides
that
the
State
Government has to consider the relaxation
of the prescribed period of limitation
looking into the undue hardship which is
going to be caused to an applicant who is
seeking appointment. Here the duty is
casted upon the authority concerned to
forward the matter with respect to the
relaxation of the period of limitation to
the state government before issuing an
appointment letter and once the matter
was not forwarded and the appointment
letter has been issued the same cannot be
cancelled by the appointing authority
himself without having version of the
petitioner that too in the circumstances
where there is no such objection by the
State Government.

11. On facts also this is a very hard
case where the petitioner has lost her
father and mother both, therefore, even if
there is any irregularity in issuing the
appointment letter that can be cured even
without cancelling the appointment letter
of the petitioner as the purpose of the
Rules of 1974 is to save out the member
of the aggrieved family from the financial
crunch which has fallen on the family
after the death of an employee. Further
once an appointment has been offered it
will mean that the entitlement of the
petitioner on merit under the rules has
been
considered
by
the
competent
authority, in other words after considering
entitlement under the Rules of 1974 the
appointment letter has been issued and
merely because the period of limitation
has not been relaxed by the State
government, it cannot be presumed that
the order is totally illegal.

12. I am of the view that once an
appointment has been considered on merit
1 All] Vishwanath Katiyar V. State of U.P. and others
343
and appointment letter has been issued,
the power of relaxation of period of
limitation shall fall under the category of
procedural irregularity, which may be
cured at any point of time after issuance
of appointment letter.

13. In view of that, the writ petition
succeeds and is allowed. The impugned
order dated 9.11.2006 is hereby quashed.

14. The respondent no. 2 is directed
to permit the petitioner to join her service
and pay salary in accordance with law.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.04.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 20127 of 2010

Vishwanath Katiyar

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Yogish Kumar Saxena

Counsel for the Respondents:
S.C.

U.P.
Secondary
Education
Service
Selection Board Rules, 1998, Rule 12Selection/appointment
of
Principalchallenged on ground that R-5 neither
given preference for the institution in
question-nor participated in interview in
concern
board-held-misconceived-a
better qualified candidate can supersetprovision of participation of interview in
same institution-held-not mandatory.

Held: Para 18

In view of the aforesaid, this Court holds
that merely because respondent no. 5
has not appeared before the Board,
which was constituted for the institution,
or he had not mentioned the institution
in question as one of his choice, it cannot
be said that his selection for the
institution on overall merit is illegal in
any manner. Interim orders relied are
not precedent, more so when this writ
petition is being finally decided.
Case law discussed:
Special Appeal No. 1454 of 2006, 2006 (1)
UPLBEC page 334.

(Delivered by Hon'ble Arun Tandon, J.)

1. Heard learned counsel for the
parties.

2. Petitioner before this Court is
working as adhoc Principal in Jan Kalyan
Inter College, Ursan, Kanpur Dehat,
which
is
a
recognized
and
aided
Intermediate College. He seeks quashing
of the select panel dated 16.03.2010
notified by the U.P. Secondary Education
Services Selection Board qua the post of
Principal of the institution.

3. The select list dated 16.03.2010 is
being challenged on three grounds (a)
name of the petitioner was not forwarded
by the institution as amongst two senior
most teachers for participation in the
process of selection under Rule 11(b) of
the U.P. Secondary Education Services
Selection Board Rules, 1998 (hereinafter
referred to as '1998 Rules'), (b) the
respondent no. 5 had not opted for the
post of Principal of the institution
concerned and therefore he cannot be
selected and (c) He was not interviewed
by the Selection Board constituted for the
post of Principal of the College under
Rule 12.

4. For the second and third
proposition reliance has been placed upon