# Lalit Kumar Srivastava v. State of U.P.and others

- **Citation:** (2005) 1 ILRA 16
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-11-19
- **Case number:** Civil Misc. Writ Petition No.35499 of 2001
- **Bench:** Sabhajeet Yadav
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lalit-kumar-srivastava-v-state-of-u-p-and-others-40338
- **Pages:** 14

## Headnote

Dying in Harness Rules, 1974-G.O. dated
4.9.2000-Compassionate
appointmentClaims
for-Petitioner
applied
for
appointment under Dying in Harness
Rules on Class III post on death of his
father -Appointment given on Class IV
post in Junior High School-on 2.8.81
Subsequent appointment of two other
persons on class III posts under Dying in
Harness
Rules-Writ
petition-plea
of
discrimination-Director
of
Basic
Education, (Chairman of the Board)
directed to enquiry into matter-In case it
is found that on date of petitioner's
application, there was any vacancy in
class III post, he may be offered
appointment against Class III post on
principle of 'first come first serve'-In
case vacancies occurred subsequent to
appointment of petitioner on class IV
post and he has made application for
class III post and has not moved his
claim is required to be considered for
appointment on class III post even
though he was appointed on class IV
post-Director of Basic Education ordered
to pass reason and speaking orderFurther, Govt. directed to constitute
http://www.allahabadhighcourt.nic.in
1All] Lalit Kumar Srivastava V. State of U.P. and others
17
monitoring cell at regional level and
Head office level to supervise and ensure
proper and effective implementation of
Govt. Order dated 4.9.2000 in respect of
appointment under Dying in Harness
Rules-Constitution of India-Article 14
and 16 (1).
Held: Para 15
After due enquiry if it is found that on
the date of offer of appointment to the
petitioner i.e. on 2.8.1999 any vacancy
against class-III post in the district was
available, it was required to be offered to
the petitioner on the basis of principle of
"first come first serve" and in case there
exists no such vacancy in class-III post
in the district and the petitioner has
moved his revised application for classIV post to the appointing authority, only
in
that
event
of
the
matter
the
appointing authority could have offered
appointment to the petitioner against
class-IV post and not otherwise in
accordance with class (5) of paragraph 3
of the Government order dated 4.9.2000.
If it is found that on the date of
appointment of petitioner any vacancy
against class-III post in the district was
not available in that event of the matter
he ought to have been asked either to
wait for occurrence of such vacancy or
revise his application for class-IV post.
The
offer
of
appointment
to
the
petitioner against class-IV post and
acceptance by him without following the
aforesaid
procedure
is
of
no
legal
consequence and cannot be taken to be
any way impediment in accepting the
claim of the petitioner against class-III
post.
Case law discussed:
AIR 1989 SC 1976
AIR 1998 SC 2230
(1994) 4 SCC 138
2002 SCC (L & S) 1115
2001 (1) ESC 419

## Text

_Characters 0–39,585 of 51,590. This is a partial read: ask again with offset=39585 for what follows._

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
16
question, he may be allowed some time to
vacate the shop in question. In the facts
and circumstances of the case it would be
in the interest of justice that the petitioner
is granted time till 30th June 2005 to
vacate the shop in question provided:
1. the petitioner furnishes undertaking
before the prescribed authority within
a period of three weeks from today
that he will hand over peaceful vacant
possession of the shop in question to
the landlord on or before 30th June
2005;
2. the petitioner undertakes to deposit
the entire arrears of rent/damages
calculated at the rate of rent within
same period of three weeks from
today, if not already paid, by either
depositing the same before
the
prescribed authority or paying the
same to the landlord-respondent and
keeps
on
depositing
the
future
rent/damages by first week of the
succeeding month in the manner
prescribed above as and when it falls
due so long as the tenant remains in
possession of the shop or till 30th June
2005 whichever
is
earlier. The
amount
if deposited before
the
prescribed authority by the petitionertenant, the same shall be permitted to
withdraw by the landlord.

In the event of default of any of the
conditions mentioned above, it will be
open to the landlord to get the order of
release executed against the petitioner
through process of law.

In view of what has been stated
above the writ petition is dismissed.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 19.11.2004

BEFORE
THE HON'BLE SABHAJEET YADAV, J.

Civil Misc. Writ Petition No.35499 of 2001

Lalit Kumar Srivastava
...Petitioner
Versus
State of U.P.and others ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri R.C. Shukla
Sri Ajay Shankar
Sri V.K. Singh

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

Dying in Harness Rules, 1974-G.O. dated
4.9.2000-Compassionate
appointmentClaims
for-Petitioner
applied
for
appointment under Dying in Harness
Rules on Class III post on death of his
father -Appointment given on Class IV
post in Junior High School-on 2.8.81
Subsequent appointment of two other
persons on class III posts under Dying in
Harness
Rules-Writ
petition-plea
of
discrimination-Director
of
Basic
Education, (Chairman of the Board)
directed to enquiry into matter-In case it
is found that on date of petitioner's
application, there was any vacancy in
class III post, he may be offered
appointment against Class III post on
principle of 'first come first serve'-In
case vacancies occurred subsequent to
appointment of petitioner on class IV
post and he has made application for
class III post and has not moved his
claim is required to be considered for
appointment on class III post even
though he was appointed on class IV
post-Director of Basic Education ordered
to pass reason and speaking orderFurther, Govt. directed to constitute
http://www.allahabadhighcourt.nic.in
1All] Lalit Kumar Srivastava V. State of U.P. and others
17
monitoring cell at regional level and
Head office level to supervise and ensure
proper and effective implementation of
Govt. Order dated 4.9.2000 in respect of
appointment under Dying in Harness
Rules-Constitution of India-Article 14
and 16 (1).
Held: Para 15
After due enquiry if it is found that on
the date of offer of appointment to the
petitioner i.e. on 2.8.1999 any vacancy
against class-III post in the district was
available, it was required to be offered to
the petitioner on the basis of principle of
"first come first serve" and in case there
exists no such vacancy in class-III post
in the district and the petitioner has
moved his revised application for classIV post to the appointing authority, only
in
that
event
of
the
matter
the
appointing authority could have offered
appointment to the petitioner against
class-IV post and not otherwise in
accordance with class (5) of paragraph 3
of the Government order dated 4.9.2000.
If it is found that on the date of
appointment of petitioner any vacancy
against class-III post in the district was
not available in that event of the matter
he ought to have been asked either to
wait for occurrence of such vacancy or
revise his application for class-IV post.
The
offer
of
appointment
to
the
petitioner against class-IV post and
acceptance by him without following the
aforesaid
procedure
is
of
no
legal
consequence and cannot be taken to be
any way impediment in accepting the
claim of the petitioner against class-III
post.
Case law discussed:
AIR 1989 SC 1976
AIR 1998 SC 2230
(1994) 4 SCC 138
2002 SCC (L & S) 1115
2001 (1) ESC 419

(Delivered by Hon'ble Sabhajeet Yadav, J.)

1. On 29.10.2004 Sri Ashok Khare
learned Senior Advocate for the petitioner
and
Sri
R.K.Tripathi
Advocate
for
respondents no.2 and 3 have been heard at
length and on conclusion of hearing, the
judgment was reserved.

2. The brief facts of the case are that
the father of the petitioner late Hira Sri
Lal Srivastava, while working as head
master in the Primary School Gauspur,
Hathgaon, District Fatehpur run by the
Uttar Pradesh Basic Education Board,
died in harness on 9.6.1999 leaving
behind him his wife, four sons and one
daughter. After his death, his uneducated
widow demanded the service for the
petitioner, who is her second eldest son,
on any class-III post under Dying in
Harness
Rules
applicable
to
the
employees (teaching and non-teaching) of
Uttar Pradesh Basic Education Board.
According to the case of the petitioner, he
is duly qualified to be appointed as a
teacher or clerk in the establishment of
the respondents, but he was offered only
class-IV post in the Junior High School,
Amilispal, Hathgaon, District Fatehpur, as
he was told that no vacancy exists in
class-III post and his class-IV post will be
changed on availability of vacancy in
class-III post in future. Accordingly he
joined on class-IV post as offered to him
vide order dated 2.8.1999 passed by the
District
Basic
Education
Officer,
Fatehpur. According to the petitioner,
shortly
thereafter
on
24.4.2000
the
District Basic Education Officer, Fatehpur
has appointed Sri Pawan Kumar Uttam
and Smt.Sweta as class-III employees in
the office of Deputy Basic Education
Officer, Fatehpur in the pay scale of
Rs.3050/- 4590/- under Dying in Harness
Rules. They have also qualification of
Intermediate. The petitioner has also filed
the letter of appointment issued to Sri
Pawan Kumar Uttam and Smt. Sweta as
Annexure-2 of the writ petition. Feeling
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
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aggrieved against the aforesaid action of
the District Basic Education Officer, the
petitioner has approached the Secretary
Basic Education, Government of Uttar
Pradesh as well as the Minister of the
concerned department of education by
moving applications before them. The
aforesaid applications have also been filed
by the petitioner as Annexures-3 and 4 of
the writ petition. On the application of the
petitioner
it
appears
that
some
endorsement has been made to the District
Basic Education Officer by the concerned
Minister of the Government of Uttar
Pradesh
indicating
therein
that
the
petitioner may be adjusted against classIII post. In support of his claim petitioner
has also filed Government Order dated
4.9.2000 issued under Section 13(1) of
Uttar Pradesh Basic Education Act, 1972
(U.P.Act No.34 of 1972) herein after
referred to as Act-1972, as Annexure-5 of
the writ petition. Finding no favour with
the concerned District Basic Education
Officer, Fatehpur, the petitioner has filed
the instant writ petition seeking the relief
to the effect that a writ, order of direction
in the nature of mandamus may be issued
commanding
the
respondents
to
appoint/promoted the petitioner on the
post of un-trained teacher or clerk at the
earliest as per provisions of Dying in
Harness Rules and further a relief has
been sought for in the nature of writ,
order or direction to the effect that
respondent no.3 may be directed to
comply with the order of departmental
Minister/Secretary of Govt. of U.P..

3. Dr. Chandra Pal, the then working
as District Basic Education Officer,
Fatehpur has filed counter affidavit on
behalf of respondents no.2 and 3 in the
writ petition and has come forward, inter
alia, with the case that the petitioner has
been offered appointment on class-IV
post on compassionate ground in the
institution in question and in pursuant
thereof he has joined the post without any
objection
and
since
then
he
is
continuously working on the aforesaid
post and is being paid his salary month to
month. It is further averred in the counter
affidavit that there was no assurance by
any of the officers/ District Basic
Education Officer for changing his classIV post in class-III post on account of
availability of vacancy in class-III post in
future. The Minister and Secretary of the
department concerned have only directed
for doing the needful in accordance with
the provisions of law. Therefore, the
petitioner can have no cause of complaint
to maintain the instant writ petition before
this Court for the reliefs claimed in it.

4. For better appreciation of the case
of respondents, the averments contained
in paragraphs 8 and 9 of the counter
affidavit are quoted herein below:-

"8. That the contents of paragraphs
no.6 and 7 of the writ petition has already
been reply in the proceeding paragraphs
of this affidavit, as such they are denied
accordingly. However, in reply it is
hereby submitted that the petitioner was
never
assured
for
changing
his
appointment from class-iv to class-iii
cadre, as such the averment in this respect
made in para under reply is wholly falls
and baseless. So far as the letters of
Hon'ble Minister and Secretary Basic
Education and concern, it is made clear
that a direction and recommendation has
been made to District Basic Education
Officer for doing the needful in the
interest of justice.
9. That the contents of para no.8 of the
writ petition are not admitted as stated
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1All] Lalit Kumar Srivastava V. State of U.P. and others
19
being
misconceived
and
misleading
before this Hon'ble Court. In reply it is
hereby submitted that in the Government
order dated 4.9.2000 it has never been
provided that in case once a person
appointed in class-iv post due to non
availability of any class-iii post, in future
on the availability of the class-iii post the
said person can again to be posted from
class-iv to class-iii cadre towards the
compassionate appointment. Since the
petitioner
is
already
working
and
obtaining salary from the date of his
initial appointment i.e. 2.8.99 on class-iv
post, as such the petitioner cannot claim
again to avail the benefit of Dying in
Harness Rules. The allegation against the
respondent no.3 regarding malafide and
violation of constitutional provision is
wholly baseless and the petitioner has
made the same in para under reply just to
make out his case in the instant writ
petition. Rest of the averment made in
para under reply being contrary to the
facts hence they are denied."

5. The thrust of the submission of
the counsel for the petitioner is that in
view of the Government Order dated
4.9.2000, which has been made applicable
with effect from 8.1.1999 having regard
to
the
educational
qualification
as
Intermediate, it was obligatory on the part
of
the
respondents
to
offer
a
compassionate
appointment
to
the
petitioner on class-III post and not on
class-IV post. In any case, shortly after
the appointment of the petitioner on
2.8.1999, the other persons, namely, Sri
Pawan Kumar Uttam and Smt. Sweta,
who have also identical educational
qualification as Intermediate, have been
offered appointment on class-III post vide
letter of appointment dated 24.4.2000,
Therefore, the petitioner has been grossly
discriminated
in
the
matter
of
employment in utter violation of the
provisions of Article 16(1) of the
Constitution of India. Sri Khare has
further contended that since in the counter
affidavit filed by the District Basic
Education Officer, Fatehpur, there is no
averment at all specifically denying the
fact that at the time of offer of
appointment to the petitioner there exists
no vacancy in the establishment of
respondents against class-III post and the
vacancies, which were offered to Sri
Pawan Kumar Uttam and Smt. Sweta,
have been occurred later on after
appointment of the petitioner. Therefore it
is established that the petitioner has been
grossly discriminated in the matter of
employment In any event of the matter
while considering the claim of the
petitioner, the relevant provisions of
Government Order dated 4.9.2000 have
not been adhered to. In support of his
contentions the learned counsel for the
petitioner has placed reliance upon the
decision of Apex Court rendered in Surya
Kant Kadam Versus State of Karnataka
and others, reported in 2002 Supreme
Court Cases (L & S) 1115 and a decision
of this Court rendered in Sudhakar
Srivastava
Vs.
Deputy
Director
of
Education
(Secondary)
9TH
Region,
Faizabad and others, reported in 2001(1)
Education and Services Cases 419.

6. Before dealing with the rival
contentions of the parties, it is necessary
to examine the aims, object and purpose
of the scheme underlying in Dying in
Harness Rules for grant of compassionate
appointment. The issue of grant of
compassionate appointment under Dying
in Harness Rules is not res-integra. The
Apex
Court
and
this
Court
have
considered the issue from time to time
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
20
and provided sufficient guidance for
giving employment under Dying in
Harness
Rules.
In
the
case
of
Smt.Sushma Gosain and others Vs.
Union of India and others, reported in
AIR 1989 Supreme Court 1976, in
paragraph 9 of the report it was observed
that:-

"9. We consider that it must be
stated unequivocally that in all claims for
appointment on compassionate grounds,
there should not be any delay in
appointment. The purpose of providing
appointment on compassionate ground is
to mitigate the hardship due to death of
the bread earner in the family. Such
appointment
should,
therefore,
be
provided immediately to redeem the
family in distress. It is improper to keep
such case pending for years. If there is no
suitable
post
for
appointment
supernumerary post should be created to
accommodate the applicant."

7. In the case of Director of
Education (Secondary) and another Vs.
Pushpendra Kumar and others, reported
in AIR 1998 Supreme Court, 2230, while
taking note of the earlier decision of the
Apex Court rendered in the case of
Umesh Kumar Nagpal V. State of
Haryana, reported in 1994(4) SCC 138
in paragraph 8 of the judgment it was
observed that-

8. The object underlying a provision
for grant of compassionate employment is
to enable the family of the deceased
employee to tide over the sudden crisis
resulting due to death of the bread earner
which has left the family in penury and
without any means of livelihood. Out of
pure
humanitarian
consideration and
having regard to the fact that unless some
source of livelihood is provided, the
family would not be able to make both
ends meet, a provision is made for giving
gainful appointment to one of the
dependents of the deceased who may be
eligible for such appointment. Such a
provision makes a departure from the
general
provisions
providing
for
appointment on the post by following a
particular
procedure.
Since
such
a
provision enables appointment being
made
without
following
the
said
procedure, it is in the nature of an
exception to the general provisions. An
exception cannot sub-sume the main
provision to which it is an exception and
thereby nullity the main provision by
taking
away
completely
the
right
conferred by the main provision. Care
has, therefore, to be taken that a provision
for grant of compassionate employment
which is in the nature of an exception to
the general provisions, does not unduly
interfere with the right of other persons
who are eligible for appointment to seek
employment against the; post which
would have been available to them, but
for the provision enabling appointment
being made on compassionate grounds of
the dependent of a deceased employee. In
Umesh Kumar Nagpal V. State of
Haryana, 1994 (4) S.C.C.138: (1994 AIR
SCW 2305) this Court has taken note of
the object underlying the rules providing
for
appointment
on
compassionate
grounds and has held that the Government
or the public authority concerned has to
examine the financial condition of the
family of the deceased and it is only if it
is satisfied that but for the provision of
employment, the family will not be able
to meet the crisis that a job is to be
offered to the eligible member of the
family. In that case the Court was
considering
the
question
whether
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1All] Lalit Kumar Srivastava V. State of U.P. and others
21
appointment on compassionate grounds
could be made against posts higher than
posts in Classes III and IV. It was held
that such appointment could only be made
against the lowest posts in non-manual
and manual categories. It was observed at
page 2308 of AIR SCW:-

"The provision of employment in
such lowest posts by making an exception
to the rule is justifiable and valid since it
is not discriminatory. The favourable
treatment given to such dependent of the
deceased employee in such posts has a
rational nexus with the object sought to be
achieved, viz., relief against destitution.
No other posts are expected or required to
be given by the public authorities for the
purpose. It must be remembered in this
connection that as against the destitute
family of the deceased there are millions
of other families which are equally, if not
more destitute. The exception the rule
made in favour of the family of the
deceased employee is in consideration of
the services rendered by him and the
legitimate expectations and the change in
status
and
affairs
of
the
family
engendered by the erstwhile employment
which are suddenly upturned."

9. While superseding the earlier
Government
Order
on
the
subject,
Government of Uttar Pradesh has issued
an order under clause (1) of Section 13 of
the Act-1972, on 4.9.2000, wherein a
complete scheme has been provided for
making appointment under Dying in
Harness Rules to the dependent of
deceased
teaching
and
non-teaching
employees
of
Uttar
Pradesh
Basic
Education Board, herein after referred to
as the Board. This scheme has statutory
sanction and statutory force to be
enforceable in the court of law. The
Government
Order
has
retrospective
operation with effect from 8.1.1999. For
better appreciation of the provision
underlying in Dying in Harness Scheme
contained in the aforesaid Government
Order, it is necessary to re-produce the
same in toto:-

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 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
22
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dks tks] dsUnzh; ljdkj ;k jkT; ljdkj ;k dsUnzh; ljdkj
;k jkT; ljdkj ds LokfeRok/khu ;k muds }kjk fu;af=r
fdlh fuxe ds v/khu igys ls lsok;ksftr u gksA bl lEcU/k
esa e`rd vkfJr vkosnudrkZ ls 'kiFk i= izkIr djus ds
mijkUr gh mlds lsok;kstu ij fopkj fd;k tk;sxkA
1⁄421⁄2 mRrj izns'k csfld f'k{kk ifj"kn ds f'k{kdksa@f'k{k.sRrj
deZpkfj;ksa ds ,sls e`rd vkfJr tks csjkstxkj gks vkSj fu;eksa
ds vUrxZr fu/kkZfjr U;wure 'kSf{kd ,oa izf'k{k.k ;ksX;rk
j[krs gksa rFkk vU; izdkj ls ifj"kn dh lsok gsrq vgZ gksa]
dks ifj"knh; fo|ky;ksa ds lgk;d v/;kid@v/;kfidk ds in
ij vFkok ifj"kn ds v/khu f'k{k.sRrj r`rh; Js.kh ds lcls
uhps ds in ij vFkok prqFkZ Js.kh ds in ij fofgr
;ksX;rk@izf'k{k.k ;ksX;rk ds vk/kkj ij lsok;kstu gsrq vkosnu
djus ij HkrhZ ds lkekU; fu;eksa@ izfdz;k dks f'kfFky djrs
gq, ifj"knh; lsok esa miZ;qDr lsok;kstu ij fopkj fd;k
tk;sxkA
1⁄431⁄2 le;≤ ij ;Fkk la'kksf/kr mRrj izns'k csfld f'k{kk
1⁄4v/;kid1⁄2 lsok fu;ekoyh 1981 ds vuqlkj vgZ e`rd
vkfJr dks lgk;d v/;kid@v/;kfidk ds in ij vkosnu
djus ds fnukad ls ;Fkk lEHko rhu ekg ds vUnj lsok;kstu
dhg lqfo/kk tuin Lrj ij fjDr in vFkok in fjDr u
gksus ds fLFkfr esa vf/kla[; in ds fo:) iznku dh tk;sxhA
1⁄441⁄2 ,sls e`rd vkfJr tks lsok;kstu gsrq vkosnu i=
izLrqr djus dh frfFk dks lgk;d v/;kid ds in gsrq lsok
fu;eksa es fofgr 'kSf{kd vgZrk j[krs gksa ijUrq izf'k{k.k vgZrk
ugha j[krs@iwjh djrs] dks vizf'kf{kr v/;kid ds :i esa
lsok;kstu gsrq vkosnu djus ij ;Fkk lEHko rhu ekg ds
vUnj lsok;kstu dh lqfo/kk iznku dh tk;sxhA ,sls e`rd
vkfJr dks lsok;kstu ds ckn lEcfU/kr tuin ds ftyk f'k{kk
,oa izf'k{k.k laLFkku esa izkjEHk gksus okys csfld v/;kid
izek.k i=1⁄4ch-Vh-lh-1⁄2 izf'k{k.k ikB~;dze ds vkxkeh igys
cSp esa lgk;d v/;kid@v/;kfidk ds in ij fu;fer
fu;qfDr iznku djus ds fy, mudks ch-Vh-lh- izf'k{k.k
ikB~;dze lQyrkiwoZd iw.kZ djuk vfuok;Z gksxkA izf'k{k.k
vof/k esa mUgsa vizf'kf{kr v/;kid ds :i esa fu;r osru]
tSlk fd 'kklu }kjk le; le; ij fu/kkZfjr fd;k x;k gks]
ns; gksxkA csfld v/;kid izf'k{k.k ikB~;dze esa mRrh.kZ gksus
ds ckn gh izkFkfed fo|ky; esa lgk;d v/;kid ds in ij
fu;fer fu;qfDr iznu dh tk;sxhA

fu;qfDr izkf/kdkjh ,oa ftyk f'k{kk ,oa izf'k{k.k laLFkku
dk ;g nkf;Ro gksxk fed og izf'kf{kr v/;kid ds :i esa
lsok;ksftr e`rd vkfJr vH;fFkZ;ksa ds lsokjr izf'k{k.k dh
O;oLFkk muds lsok;kstu ds ckn izkjEHk gksus okys igys
izf'k{k.k l= esa lqfuf'pr djsaxsA

,sls e`rd vkfJr dk tks mi;qZDr lsokjr izf'k{k.k dks
fu/kkZfjr vof/k esa lQyrkiwoZd iw.kZ djus esa vlQy jgrs gSa
ds fy, ;g fodYi miyC/k jgsxk fd og prqFkZ Js.kh ds in
ds lkis{k fu;qfDr gsrq vkosnu djsa vFkok izf'k{k.k mRrh.kZ
djus rd vizf'kf{kr v/;kid ds :i esa fu;r osru ij cus
jgsaA fdUrq izfrcU/k ;g gS fd ,sls lsokjr ch-Vh-lh-
izf'k{k.kkfFkZ;ksa dks lkekU; ch-Vh-lh- ikB~;dze ds izf'k{k.kkfFkZ;ksa
dh Hkkafr gh ch-Vh-lh- ikB~;dze dh vuqiwjd ijh{kk gsrq
fofgr fu;eksa ds vuqlkj volj vuqeU; gksaxsA fdUrq ;fn
vH;FkhZ rc Hkh ch-Vh-lh- dh vafre ijh{kk mrrh.kZ djus esa
foQy jgrs gSa rks ,sls vH;fFkZ;ksa ds fy, prqFkZ Js.kh ds in
ds lkis{; fu;fer fu;qfDr ds vfrfjDr dksbZ fodYi 'ks"k
ugha jgsxkA vr% ,sls vH;FkhZ tks ch-Vh-lh- ijh{kk esa vafre
:i ls foQy jgrs gSa] dks lgk;d v/;kid in ds fy,
vH;FkZu Lor% fujLr le>k tk;sxk vkSj ch-Vh-lh- ijh{kk esa
vafre :i ls foQy gksus ds ekg ds vafre dk;Z fnol ls
vizf'kf{kr v/;kids ds :i esa Hkh mudh fu;qfDr Lor%
lekIr le>h tk;sxhA fdUrq ,sls vH;FkhZ ;fn prqFkZ Js.kh ds
fjDr@vf/kla[; in ds lkis{; lsok;kstu dh izkFkZuk djrs gSa]
rks ml ij fopkj fd;k tk ldsxkA
1⁄451⁄2 ,sls e`rd vkfJr tks lEcfU/kr deZpkjh dh e`R;q ds
fnukad dks e`rd vkfJr ds :i esa lsok;kstu ds fy,
U;wure 'kSf{kd vgZrk b.VjehfM,V vFkok mlls vf/kd
j[krs gksa vkSj csfld f'k{kk ifj"kn ds v/khu vf/kuLFk Lrjks
ij fyfid ds laoxZ ds lcls uhps ds in ij lsok;kstu ds
fy, vU;Fkk vgZ gksa] dks lEcfU/kr tuin esa fyfid ds fjDr
in ds lkis{; lEoxZ esa lcls uhps ds in ij lsok;kstu
iznku fd;k tk;sxkA

tuin esa fjDr fyfid ds in ij e`rd vkfJr ds
:i esa lsok;kstu ds fy, izkIr leLr vkosnu i=ksa dks izFke
vkxr izFke iznRr ds vk/kkj ij iathd`r fd;k tk;sxk rFkk
foHkkx esa fjDr gksus okys inksa ds lkis{; izFke vkxr izFke
iznRr ds fu;e dk ikyu lqfuf'pr djrs gq, lsok;kstu
iznku fd;k tk;sxkA fu;qfDr izkf/kdkjh rnuqlkj e`rd
vH;fFkZ;ksa dh lwph dks izR;sd ekg ds izkjEHk esa vius
http://www.allahabadhighcourt.nic.in
1All] Lalit Kumar Srivastava V. State of U.P. and others
23
dk;kZy; ds lwpuk iVy ij iznf'kZr djsaxs vkSj izR;sd ekg
gksus okyh fjfDr ds lkis{; lsok;sftr e`rd vkfJr dk uke
iznf'kZr djrs gq, mDr lwph dk;kZy; ds lwpuk iVy ij
iznf'kZr djrs gq, mDR lwph dks rn~uqlkj la'kksf/kr dj vxys
ekgh ds izkjEHk esa v|kof/kd la'kksf'kr lwph dk;kZy; ds
lwpuk iVy ij iznf'kZr djrs jgsaxsA r`rh; Js.kh ds fjDr in
ds lkis{; e`rd vkfJr lsok;kstu ds fy, izR;sd vH;FkhZ ds
uke fu;qfDr izkf/kdkjh ds dk;kZy; esa iathd`r gksus dh frfFk
ls ikWap o"kZ dh vof/k iwjh gksus ds ekg ds vafre dk;Zfnol
rd ;fn izFke vkxr izFke iznRr ds fl)kUr ds vuqlkj
lsok;kstu gsrq Js.kh rhu dh fjfDr miyC/k ugha gksrh rks
lEcfU/kr vH;FkhZ dk uke iathd`r vH;fFkZ;ksa dh lwph ls
fudky fn;k tk;sxk vkSj ml fLFkfr esa lEcfU/kr vH;FkhZ
mDr lqfo/kk ikus ds fy, ik= ugha jg tk;saxs] fdUrq bl
vof/k ls iwoZ ;fn Js.kh pkj ds fjDr in@vf/kla[; in ds
lkis{; lsok;kstu gsrq viuk la'kksf/kr vkosnu i= fu;qfDr
izkf/kdkjh ds dk;kZy; esa iathd`r djk ysa] rks ml ij fopkj
fd;k tk;sxkA

e`rd vkfJr ifjokj dh dfBu ifjfLFkfr;ksa dks
n`f"Vxr j[krs gq, ;fn dksbZ vH;FkhZ fyfid lEoxZ ds in dh
fjfDr ds lkis{; lsok;kstu esa lEHkkfor foyEc dks n`f"Vxr
j[krs gq, ;fn rRdky lso;kstu dh vko';drk vuqHko
djrk gks rks fu;qfDr izkf/kdkjh ds fy, ,sls vH;fFkZ;ksa ds
lEcU/k esa prqFkZ Js.kh esa fjDr ;k vf/kla[; inksa ds lkis{;
e`rd vkfJr ds iqujhf{kr vkosnu i= izLrqr djus ij
lsok;kstu djus dk vf/kdkj gksxkA ;gkWa ;g Li"V fd;k
tkrk gS fd ,d ckj e`rd vkfJr ds :i esa iznRr
lsok;kstu dh lqfo/kk ij iquZfopkj dk dksbZ volj ugha
jgsxkA
1⁄461⁄2 ,sls e`rd vkfJr ftudh U;wure 'kSf{kd ;ksX;rk
twfu;j gkbZ Ldwy gS] dks csfld f'k{kk ifj"kn ds tuin
Lrjh; dk;kZy; esa fjDr in vFkok ifj"knh; fo|ky;ksa esa
prqFkZ Js.kh ds fjDr ;k vf/kla[; in ij lsok;kstu dh
lqfo/kk iznku dh tk;sxhA tuin Lrjh; dk;kZy; ds lEcU/k
esa vf/kla[; in ds fo:) e`rd vkfJr lsok;kstu vuqeU;
ugha gksxkA
1⁄471⁄2 vf/kla[; in Hkfo"; esa fjDr gksus okys inksa ds
lkis{; le;≤ ij le;ksftr fd;s tk;saxsA fu;qfDr
izkf/kdkjh tuin dks bdkbZ ekurs gq, fjDr@vf/kla[; inksa ds
fo:) e`rd vkfJrksa dks lsok;ksftr djsaxsA tuin ds
dk;kZy;ksa esa fdlh Hkh vf/kla[; in ds fo:) fu;qfDr;kwa ugha
dh tk;saxhA vf/kla[; in ds in/kkjh }kjk dh x;h lsok dh
x.kuk osru fu/kkZj.k vkSj lsokfuo`fRr ykHkksa ds fy, dh
tk;sxhA
1⁄481⁄2 e`rd vkfJr }kjk lEcfU/kr deZpkjh ds e`R;q ds
fnukad la ikWp o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu
izLrqr fd;k tk ldrk gSA ijUrq tgkWa jkT; ljdkj dks ;g
lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu djus ds fy,
fu;r le; lhek ls fdlh fof'k"V ekeys esa vuqfpr dfBukbZ
gksrh gS ogkWa og vis{kkvksa dks ftUgsa og ekeys esa U;k; laxr
vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy, vko';d
le>s] vfHkeqDr ;k f'kfFky dj ldrh gSA fu;eksa esa bl
vk'k; dh vfHkeqfDr@f'kfFkyhdj.k ds lEcU/k esa izLrko
lEcfU/kr fu;qfDr izkf/kdkjh }kjk f'k{kk funs'kd 1⁄4cs01⁄2 ds
ek/;e ls 'kklu dks izsf"kr fd;s tk;saxsA
1⁄491⁄2 mRrj izns'k lsokdky esa e`r ljdkjh lsodksa ds
vkfJrksa dh HkrhZ ls lEcfU/kr le;≤ ij ijla'kksf/kr
fu;ekoyh dh O;oLFkkvksa ds v/khu mRrj izns'k csfld f'k{kk
ifj"kn ds dezpkfj;ksa ds e`rd vkfJr dk rkRi;Z e`rd
f'k{kd@f'k{k.ksRrj deZpkjh ds iq=] vfofokfgr vFkok fo/kok
iq=h] iRuh vFkok ifr ls gksxkA
1⁄4101⁄2 e`rd vkfJr ds :i esa lsok;kstu ds fy, U;wure
vk;q lhek tSlk fd lEcfU/kr lsok lEoxZ ds lsok fu;eksa es
fofgr gS] gksxhA
4-
Jh jkT;iky mRrj izns'k csfld f'k{kk vf/kfu;e]
1972 1⁄4mRrj izns'k vf/kfu;e la[;k&34] lu~ 19721⁄2 dh
/kkjk&13 dh mi/kkjk 1⁄411⁄2 ds vUrxZr ;g vkns'k nsrs gSa fd
mi;qDr fu.kZ; ds vuqlkj dk;Zokgh lqfuf'pr dh tk;A
1⁄451⁄2 ;g vkns'k fnukad 08-01-1999 ls izHkkoh ekuk
tk;sxkA
1⁄461⁄2 ;g vkns'k forr foHkkx ds vk'kkldh; la[;k
vkbZ0,Q0,0&2&1490@nl@2000 fnukad 29-08-2000
esa izkIr mudh lgefr ls fuxZr fd;s tk jgsa gSA
 Hkonh;

g0@&

 1⁄4 ,u-jfo'kadj 1⁄2
 lfpo

la[;k 5193 1⁄411⁄2@15&5&2000&200 1⁄42221⁄2 99] rnfnukad
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izsf"kr%&
1- funs'kd] ,l0lh0bZ0vkj0Vh0 y[kuÅA
2- lfpo] mRrj izns'k csfld f'k{kk ifj"kn] bykgkcknA
3- lelr ftyk csfld f'k{kk vf/kdkjh m0iz0A
 vkKk ls

g0@&

1⁄4 fnus'k pUnz dukSft;k 1⁄2
 fo'ks"k lfpoA**

10. A scrutiny of the aforesaid
Government Order dated 4.9.2000 reveals
that in case of death of any teaching or
non-teaching employee of the Board
during the course of service, one member
of deceased employee will be considered
for grant of compassionate appointment in
terms and conditions as laid down in the
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
24
aforesaid Government Order. The details
of terms and conditions have been
elaborately mentioned. In clause (1) of
paragraph 3 of the aforesaid Government
Order it is stated that compassionate
appointment to the dependent of deceased
employee of the Board may be given
according to the Dying in Harness Rules
applicable to the Government employees.
In clause (2) of paragraph 3 of the
Government Order the posts upon which
compassionate
appointment
may
be
offered, are enumerated which, inter alia,
provides that compassionate appointment
may be given on the post of Assistant
Teacher in the primary school and on the
lowest post in class-III service or class-IV
post having regard to the educational
qualification and experience, by relaxing
the rules of recruitment. In clause (3) of
paragraph 3 it has been specifically
mentioned
that
compassionate
appointment on the post of Assistant
Teacher may be given to the dependent of
deceased employee against any vacant
post at district level or in absence of
vacancy on supernumerary post provided
the candidate is eligible for appointment
on the post of teacher under Uttar Pradesh
Basic Education Teachers Services Rules,
1981 as amended from time to time. In
clause (4) of paragraph 3 of the aforesaid
Government Order specific provision has
been made for appointment to the
dependent of deceased employee on the
post of Assistant Teacher, who is
untrained,
but
have
academic
qualification according to the service
rules.

11. Clause (5) of paragraph 3 of the
aforesaid Government Order specifically
deals with the cases of dependents of
deceased
employees,
who
possess
Intermediate qualification or above that
and have applied for class-III post in
clerical cadre. They may be given
employment at the lowest post in clerical
cadre against vacant posts. In the
aforesaid paragraph the further provision
has been made to the effect that for
providing employment against the vacant
posts in clerical cadre at district level, all
the applications have to be registered on
the basis of the principle of "first come
first serve" and the appointing authorities
are required to publish the list of
dependents of deceased employee at the
notice board of their office and further
after appointment against vacant posts in
every month, the aforesaid list has to be
modified for next coming month and the
same shall also be placed and published at
the notice board of their office. If no
vacancy in class-III post occurs within
five years and the candidates applied for
appointment against class-III posts, could
not be given appointment in class-III post
in the aforesaid period of five years. In
that event of the matter, their names from
the aforesaid list shall be deleted and such
candidates shall not be eligible for
seeking appointment against class-III
post, but before the expiry of the aforesaid
period of five years, if such candidates
place their revised/amended applications
for appointment against class-IV posts
and get them registered in the office of
appointing authority, the same can be
considered. It is further provided that in
case if any dependent of deceased
employee having regard to the financial
scarcity and poverty of his family, could
not be in a position to wait much time for
appointment against class-III post and
seeks immediate employment and makes
revised/
amended
application
for
appointment against class-IV post either
against available vacancy or against any
supernumerary post, then the appointing
http://www.allahabadhighcourt.nic.in
1All] Lalit Kumar Srivastava V. State of U.P. and others
25
authority can make appointment either
against any vacancy of class-IV post or
against any supernumerary post and once
such appointment is made, the same
cannot be re-opened.

12. Before applying the provisions
of the aforesaid G.O. another question
arises for consideration is that since the
Government Order dated 4.9.2000 came
into being subsequent to the appointment
of
the
petitioner,
though
it
has
retrospective effect with effect from
8.1.1999, what would be the legal effect
of the aforesaid Government Order in the
facts and circumstances of the case. In
this regard it is to be noted that the
Government order dated 4.9.2000 has
been made applicable with effect from
8.1.1999 as indicated in paragraph 5 of
the Government Order, meaning thereby
this Court has to assume the things by
way of legal fiction from the date when
the Government Order has become
operative on 8.1.1999 and the right and
obligation of the parties have to be
decided keeping the view in mind the
aforesaid
date
for
the
purpose
of
commencement
of
the
aforesaid
Government Order. Besides this, in the
aforesaid Government Order there is no
indication at all to the effect that the
appointment
already made prior
to
issuance of the aforesaid Government
Order will not be affected on account of
operation of the Government Order
having its retrospective effect. In absence
of any indication in the Government
Order itself since it is beneficial piece of
legislation, therefore a liberal construction
has to be given in favour of the
beneficiary of the Government Order. By
viewing the matter from this angle the
necessary consequence which flows from
the aforesaid Government Order is that
having
regard
to
the
educational
qualification
of
the
petitioner
as
Intermediate, the appointing authority is
required
to
consider
the
claim
of
petitioner for grant of compassionate
appointment against class-III post.

13. It is necessary to mention here
that the petitioner has sought relief of
mandamus either for appointment on the
post of untrained teacher or on the post of
clerk under Dying in Harness Rules.
Therefore, it is necessary to examine as to
whether he could have been considered
for
compassionate
appointment
as
untrained
teacher.
Since
under
the
aforesaid Government Order in order to
claim
employment
under
Dying
in
Harness Rules in teaching staff on the
post of Assistant Teacher in the primary
school run by the Board, the candidate is
required to satisfy the eligibility criteria to
be appointed as teacher under Uttar
Pradesh
Basic
Education
Teachers
Services Rules, 1981. Rule 8 of the
aforesaid Rules prescribes the academic
qualification for appointment on the post
of Assistant Teacher, a candidate must
have Bachelor degree from a University
established by law in India or a degree
recognized
by
the
Government
as
equivalent thereto together with training
qualification like BTC, HTC, JTC, CT or
any other training course recognized by
the State Government as equivalent
thereto. Although under the Government
Order a provision has been made to
appoint untrained teacher and permit the
appointee to complete training course
during the course of employment, but
since the petitioner is lacking essential
academic
qualification
of
Bachelor
degree, therefore, his claim cannot be
considered for appointment on the post of
Assistant Teacher even as an untrained
teacher, that is why it appears that the
learned counsel for the petitioner did not
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
26
press the aforesaid relief claimed in the
writ petition.

14. Although the petitioner has
mentioned in the writ petition that the
departmental Minister has directed the
District Basic Education Officer, Fatehpur
to appoint him in clerical cadre and
endorsement to the said effect has been
made on the application of the petitioner.
In this regard it would be sufficient to say
that unless the Government issue any
order in conformity with the provisions of
Article 166 of the Constitution of India,
the same has no legal effect and
consequence.
Therefore,
the
alleged
noting
and
endorsement
by
the
departmental Minister on the application
of the petitioner for his appointment
against class-III post is of no legal
consequence. It is well settled law that the
noting on the office file either by the
departmental authority or by the Minister
does not confer any right in whose favour
it is made, that is why it appears that the
learned counsel for the petitioner did not
press the issue in his argument.

15.

Now
the
question
for
consideration is that as to whether any
vacancy against class-III post in the
establishment of respondents no.2 and 3
was existing at the time of offer of
appointment to the petitioner on class-IV
post. In this regard the submission of the
learned counsel for the petitioner is that in
the counter affidavit filed on behalf of
respondents no.2 and 3 there is no specific
denial that there exists no vacancy against
class-III post on the date of offer of
appointment to the petitioner against
class-IV post, but simultaneously I found
no material on record to establish that
there exists any vacancy in class-III post
in the establishment of respondents no.2
and 3 either on the date of application of
the petitioner or on the date of offer of
appointment made to him against class-IV
post. Therefore, this question requires
further probe in the matter for all fairness
is to be done by some authority higher to
the appointing authority.