# Kripa Shanker Tiwari v. D.I.O.S., Fatehpur and another

- **Citation:** (2007) 3 ILRA 952
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2007-12-20
- **Case number:** Civil Misc. Writ Petition No. 8510 of 2002
- **Bench:** D.P. Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kripa-shanker-tiwari-v-d-i-o-s-fatehpur-and-another-41212
- **Pages:** 4

## Headnote

Constitution of India, Art. 226-Service
law-Cancellation
of
appointmentpetitioner's father died on 04.07.1989working as Head Master in Junior High
School retired on 30.10.88-keeping view
of the interest of students-in the eye of
law deemed to be retired on 30.10.88petitioner
cannot
be
appointed
on
compassionate ground-held-cancellation
order warrant no interference.

Held: Para 10

According to law, the father of the
petitioner stood retired on 30.10.1988,
but keeping in view the interest of the
students, extension of service till the end
of the academic session was granted to
him under the Rules so that the teaching
in the institution is not affected. This
session extension could only be treated
as an extension of service till the end of
the
academic
session.
It
would,
therefore, be akin to a fixed term
appointment, automatically terminating
the contract of service at the end of the
academic session. Such fixed tenured
employees cannot be treated as regular
employees
whose
Dependants
could
seek compassionate appointment, at
best, they could claim the salary up to
the period of expiry of the aforesaid
contract. It has already come on record
that the entire salary uptil 30.6.1989 has
already been paid to the petitioner's
mother and, therefore, on this ground
also the petitioner is not entitled to
compassionate appointment.
Case law discussed:
1994(4) SCC-138, 1997 (8) J T 332
2000(7) SCC 192, 2002 (2) PWC - 144

## Text

952 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 20.12.2007

BEFORE
THE HON'BLE D.P. SINGH, J.

Civil Misc. Writ Petition No. 8510 of 2002
Connected With
Civil Misc. Writ Petition No. 36028 of 2000

Kripa Shankar Tiwari

...Petitioner
Versus
District Inspector of School, Fatehpur
and another

...Respondents

Counsel for the Petitioner:
Sri S.N. Singh
Sri Piyush Mishra
Sri manoj Kumar Pandey

Counsel for the Respondents:
Sri R.K. Tripathi
Sri Suresh singh
S.C.

Constitution of India, Art. 226-Service
law-Cancellation
of
appointmentpetitioner's father died on 04.07.1989working as Head Master in Junior High
School retired on 30.10.88-keeping view
of the interest of students-in the eye of
law deemed to be retired on 30.10.88petitioner
cannot
be
appointed
on
compassionate ground-held-cancellation
order warrant no interference.

Held: Para 10

According to law, the father of the
petitioner stood retired on 30.10.1988,
but keeping in view the interest of the
students, extension of service till the end
of the academic session was granted to
him under the Rules so that the teaching
in the institution is not affected. This
session extension could only be treated
as an extension of service till the end of
the
academic
session.
It
would,
therefore, be akin to a fixed term
appointment, automatically terminating
the contract of service at the end of the
academic session. Such fixed tenured
employees cannot be treated as regular
employees
whose
Dependants
could
seek compassionate appointment, at
best, they could claim the salary up to
the period of expiry of the aforesaid
contract. It has already come on record
that the entire salary uptil 30.6.1989 has
already been paid to the petitioner's
mother and, therefore, on this ground
also the petitioner is not entitled to
compassionate appointment.
Case law discussed:
1994(4) SCC-138, 1997 (8) J T 332
2000(7) SCC 192, 2002 (2) PWC - 144

(Delivered by Hon'ble D.P. Singh, J.)

1. Heard learned counsel for the
petitioner and Shri Suresh Singh, learned
Standing counsel for the respondents.

2. It is pleaded that the father of the
petitioner Late Shri Shiv Shankar Prasad
was working as a Headmaster in Junior
High School, Dev Goan in district
Fatehpur when he died in harness on
4.6.1989 and thereafter petitioner was
granted compassionate appointment vide
order dated 3.10.1997. However, without
any notice or opportunity, the said order
was cancelled vide order dated 8.10.1997
which is impugned in the connected
petition no. 36028 of 2000. In pursuance
of an order dated 18.8.2000 passed in the
aforesaid
connected
petition,
the
respondents have passed a fresh order
dated
28.8.2001
rejecting
his
representation and affirming the order
dated 8.10.1997 which is challenged in
the present petition.

3. Learned counsel for the petitioner
has firstly urged that the order dated
8.10.1997 was passed without notice or
3 All] Kripa Shanker Tiwari V. D.I.O.S., Fatehpur and another
953
opportunity and as such ought to be
quashed.

4. It is apparent from the record that
in pursuance of the interim order passed
in
the
connected
petition,
the
representation of the petitioner has been
decided afresh affirming the order dated
8.10.1997 and, therefore, it cannot be said
that the order is ex parte.

5. It is next contended that the
finding in the order dated 28.8.2001 that
his father died on 4.7.1989 is not correct
and the respondents have ignored the
evidence filed in support thereof and as
such the order is vitiated.

6. It is undisputed that the retirement
date of the father of the petitioner was
30.10.1988 but he was given benefit of
session extension uptill 30.6.1989. It is
also evident from the record that the
incharge Headmaster of the Institution
had informed the respondents that in fact
the father of the petitioner had died on
4.7.1989. One real brother of the
petitioner viz. Shri Vijay Shankar Tripathi
had given a letter dated 3.7.1989 to the
Senior Assistant Teacher of the Institution
that though his father had retired on
30.6.1989 he could not give the charge of
the office because he was admitted in a
hospital. The mother of the petitioner and
wife of Late Shri Shiv Shankar Prasad
claimed and was paid family pension
w.e.f. 5.7.1989. It is also evident that the
full salary for the month of June 1989 was
credited and paid in the account of Shiv
Shankar Prasad which has been paid and
accepted by the petitioner's mother. All
these documents proved beyond doubt
that the father of the petitioner died after
retirement on 4.7.1989.

Apart from the aforesaid, there is
another aspect to the issue.

7. There is nothing on record to
show that on which date the petitioner
claimed compassionate appointment nor
the said application has been made part of
the record. On persistent query of the
Court to disclose the actual date, the
petitioner could not give any satisfactory
reply. Assuming that the father of the
petitioner
died
on
4.6.1989,
compassionate appointment cannot be
given after eight years especially when
there is no specific pleading or proof that
the family was in financial penury. The
petitioner is unable to show how the
provisions of U.P. Dying in Harness
Rules 1974 applies to the case of the
petitioner. The said Rules apply to
Government servants while the deceased
was an employee of the Basic Education
Board, which is an autonomous body. In
fact, for the first time the benefit of
compassionate appointment was extended
to the Board employees vide Government
order
dated
5.2.1992.
Neither
the
petitioner has been able to demonstrate
that the said Government order was
retrospective. In effect, nor there is
anything on record to show that it applies
to dependants of those employees who
had died prior to that date. Further, even if
the aforesaid Government order applied to
the case of the petitioner, under the
Government order dated 2.2.1996 there is
a bar that no compassionate appointment
would be granted to any dependant of a
deceased employee, if it is sought after
five years from the date of death unless
the Board grants permission before
considering the said application. But, in
the present case, there is nothing on
record
to
show
that
whether
any
permission was sought or given for
954 INDIAN LAW REPORTS ALLAHABAD SERIES [2007
appointment of the petitioner which was
made about eight years after the death of
the incumbent.

8.

The
provision
for
giving
compassionate appointment is a departure
from the regular rules of recruitment and
by the aforesaid rule an exception was
carved out with the sole object to help the
bereaved family where the sole bread
winner expires, so that the family may
tide over the immediate financial crises
created on the demise. The Apex Court in
the case of Umesh Kumar Nagpal v.
State of Haryana and others [(1994) 4
SCC 138] has held to the following effect:

"The whole object of granting
compassionate employment is thus to
enable the family to tide over the sudden
crisis."

It has further gone on to hold that it:

"cannot be granted after a lapse of
reasonable
periods
which
must
be
specified in the rules. The consideration
for such employment is not a vested right,
which can be exercised at any time in
future. The object being to enable the
family to get over the financial crisis
which it faces at the time of the death of
the sole bread winner, the compassionate
employment cannot be claimed and
offered whatever the lapse of time and
after the crisis is over."

In Jagdish Prasad v. State of
Haryana 1996 (1) SLR 7, the Apex Court
was
considering
the
claim
of
the
incumbent who was only four years old
when his father died in harness, for
compassionate appointment on attaining
majority. It disallowed the claim holding:

"The very object of appointment of a
dependent of the deceased employees who
die in harness is to relieve unexpected
immediate hardship and distress caused
to the family by sudden demise of the
earning member of the family. Since the
death occurred way back in 1971, in
which year, the appellant was four years
old, it cannot be said that he is entitled to
be appointed after he attained majority
long thereafter. In other words, if that
contention is accepted, it amounts to
another mode of recruitment of the
dependent of a deceased Government
servant which cannot be encouraged, de
hors the recruitment rules.'"

9. Similar view has been taken in
Haryana State Electricity Board v.
Hakim Singh [1997 (8) JT 332] where it
was held that if the family had survived
for sufficiently long period, it would be
presumed that there is no such financial
distress
where
compassionate
appointment could be granted. In Sanjai
Kumar v. State of Bihar [2000 (7)
S.C.C. 192] and thereafter in Haryana
State Electricity Board v. Krishna Devi
[2002 (2) A.W.C. 1411], the Apex Court
has gone on to hold that:

"compassionate appointment cannot
be claimed as a matter of right and it
cannot be utilized as a reservation of
vacancy till such time that the claimant
becomes
major
and
eligible
for
appointment and if such claims are
entertained the very object of the rules
would be defeated."

10. There is yet another facet to this
case. According to law, the father of the
petitioner stood retired on 30.10.1988, but
keeping in view the interest of the
students, extension of service till the end
3 All] Jai Vir Singh V. State of U.P. and another
955
of the academic session was granted to
him under the Rules so that the teaching
in the institution is not affected. This
session extension could only be treated as
an extension of service till the end of the
academic session. It would, therefore, be
akin to a fixed term appointment,
automatically terminating the contract of
service at the end of the academic session.
Such fixed tenured employees cannot be
treated as regular employees whose
Dependants could seek compassionate
appointment, at best, they could claim the
salary up to the period of expiry of the
aforesaid contract. It has already come on
record
that
the
entire
salary
uptil
30.6.1989 has already been paid to the
petitioner's mother and, therefore, on this
ground also the petitioner is not entitled to
compassionate appointment.

11. No other point has been urged.

12. In view of the above, it is
apparent that the petitioner was not
entitled for compassionate appointment in
any view of the matter and, therefore, the
order appointing him was itself illegal.
Even,
if
the
order
cancelling
the
appointment is vitiated on any account,
this Court is not bound to quash the
impugned order which would result in
reinstatement of an another illegal order.

13. For the reasons given above, this
is not a fit case for interference under
Article 226 of the Constitution of India.
Rejected.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.11.2007

BEFORE
THE HON'BLE ANJANI KUMAR, J.
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.18871 of 2006

Jai Vir Singh

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

Counsel for the Petitioner:
Sri Shashi Nandan
Sri Swapnil Kumar

Counsel for the Respondents:
Sri K.R. Sirohi
Sri Amit Sthalekar
Sri Rajiv Gupta
S.C.

Constitution
of
India,
Art.
226Disproportinate
Punishment-Petitioner
while working as Additional District
Judge decided to many land acquisition
reference cases-placing reliance upon
another
reference
court-without
considering finality-charges about giving
undue benefit to the claimants provedNeed no interference-considering 27
years
unblemished
service
recordpunishment of reduction in rank from
H.J.S.
to
civil
Judge
(J.D.)-highly
excessive, disproportionate, irrationalhence molded to stoppage of three
increments with cumulative effect from
the date impugned punishment order by
restoring back to the post of A.D.J.-held
proper.

Held: Para 67 & 68

Thus, in given facts and circumstances of
the case, we are of the firm opinion that
punishment inflicted upon the petitioner
is disproportionate to the charge levelled
against him and is highly excessive,