# Ltd v. I.T. Commissioner2 and Jose

- **Citation:** (2005) 1 ILRA 137
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2004-09-17
- **Case number:** Civil Misc. Writ Petition No. 38029 of 2002
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ltd-v-i-t-commissioner2-and-jose-40307
- **Pages:** 5

## Headnote

INDIAN LAW REPORTS ALLAHABAD SERIES [2005
138
Dying in Harness Rules Central Dying in
Harness Scheme-Murder of Petitioner's
father in Train decoity, while serving in
Defence
Security
Corp-Petitioner's
application for employment registered in
Army Head quarter-Petitioner failed to
qualify in Army-These being no vacancy
in Civil department, petitioner could not
be given appointment under Scheme and
Rules for compassionate appointment.

Held: Para 14

In the instant case, the petitioner has
failed to qualify in the Army and there
being no vacancy in the civil department
he could not be given appointment under
the
scheme
and
the
rules
for
compassionate appointment. The action
of the respondents in not appointing the
petitioner on compassionate ground can
not be said to be illegal or arbitrary.
Case law discussed:
ESC 2003 (Vol. I) 583
ESC 2003 (Vol. III) 1602
Civil and Revenue cases 2003 (Vol. III) 478
UPLBEC 2002 (Vol. III) 2807
JT (1994) 3 SC 525
(1996) 6 SCC 394
ESC 2002 (4) SC 25
(1994) 2 SCC 718
(1996) 4 SCC 560

## Text

http://www.allahabadhighcourt.nic.in
1All] Mohan Singh V. District Judge, Varanasi and others
137
Ltd. v. I.T. Commissioner2 and Jose
Decosta v. Basora Sadashiv3.

4. Yet another aspect is whether on
account of non-appearance of the counsel
for the petitioner, the petitioner could be
held to have committed default. It would
appear that default if any was on account
of absence of the counsel. In this
connection, I feel called to observe that a
litigant engages a counsel and entrusts
him with the brief and all requisite papers
in order to represent him in a judicial
court. The question is if counsel absents
himself on account of some unforeseen
emergency and is not able to represent his
client, would it be deemed to be a default
on the part of litigant himself. An
advocate means one who assists his client
with advice and pleading for him. From a
perusal of the material on record, it
transpires that counsel for the petitioner
was busy at home due to personal reason
and could not attend the court. It would
thus appear that cause was shown which
as contained in the application was
sufficient for adjourning the case and the
trial court wrongly and illegally rejected
the same. To cap it all, the function of the
court is to advance the cause of justice. In
my view, the court should not act with
rigidity in such matter unless it is of the
conclusion on valid reason and grounds
that non-appearance was with a specific
purpose to a design i.e. it was designed to
protract the litigation. In the facts and
circumstances of the present case, absence
of counsel on a particular date unless it
was deliberate or with the avowed object
of protracting expeditious disposal of the
matter should not be treated as default on
the part of the litigant himself.

2 AIR 1927 PC 242
3 AIR 1975 SC 1843

5. In the above perspective, the writ
petition is allowed and the impugned
orders are quashed. In consequence, the
petitioner shall be at liberty to lead
evidence at a very early date.

6. At this stage, the learned Counsel
for the petitioner urged that the suit itself
is very old and it should be ordered to be
decided
expeditiously.
The
learned
counsel has given undertaking that the
petitioner would fully cooperate with the
court below in expeditious disposal of the
suit. Considering that the suit is very old
and the interest of justice of both the
parties would be best attained if the suit is
ordered to be disposed of expeditiously, it
is directed that the trial court shall
endeavour to decide the suit expeditiously
preferable within a period not exceeding
one year. It may however be prescribed
that both the parties shall extend full
cooperation
and
would
not
seek
unnecessary adjournment.
Petition Allowed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 17.09.2004

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 38029 of 2002

Raj Kumar Gupta

...Petitioner
Versus
Chief of the Army Staff Army Head
Quarter and others
 ...Respondents

Counsel for the Petitioner:
Sri H.P. Mishra

Counsel for the Respondents:
Sri B.N. Singh, S.S.C.
Smt. Aradhana Chauhan
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
138
Dying in Harness Rules Central Dying in
Harness Scheme-Murder of Petitioner's
father in Train decoity, while serving in
Defence
Security
Corp-Petitioner's
application for employment registered in
Army Head quarter-Petitioner failed to
qualify in Army-These being no vacancy
in Civil department, petitioner could not
be given appointment under Scheme and
Rules for compassionate appointment.

Held: Para 14

In the instant case, the petitioner has
failed to qualify in the Army and there
being no vacancy in the civil department
he could not be given appointment under
the
scheme
and
the
rules
for
compassionate appointment. The action
of the respondents in not appointing the
petitioner on compassionate ground can
not be said to be illegal or arbitrary.
Case law discussed:
ESC 2003 (Vol. I) 583
ESC 2003 (Vol. III) 1602
Civil and Revenue cases 2003 (Vol. III) 478
UPLBEC 2002 (Vol. III) 2807
JT (1994) 3 SC 525
(1996) 6 SCC 394
ESC 2002 (4) SC 25
(1994) 2 SCC 718
(1996) 4 SCC 560

(Delivered by Hon'ble Rakesh Tiwari, J.)

Heard counsel for the parties and
perused the record.

1. 6357692-H Late Naik Ram Gopal
Gupta father of the petitioner is alleged to
have been murdered in a train dacoity on
17.1.97 while he was serving in Defence
Security Corp (hereinafter referred to as
the DSC). The mother of the petitioner
moved an application for providing
employment
to
the
petitioner
on
compassionate ground under the Dying in
Harness scheme framed by the Central
Government.

2. The petitioner's application was
registered in the office of Head Quarter
A.S.C. Centre (South) Banglore being
Registration No. UP-33 dated 16.6.1998.
Pursuant to the registration a letter was
sent to the petitioner from the office of
HQ ASC Centre (South) Bangalore for
completing
formalities
regarding
compassionate appointment under the
Dying in Harness Rules.

3. It is alleged that despite
completing all the formalities no action
was taken by the authority, which
compelled the petitioner to approach this
Court for redressal of his grievance by
means of Civil Misc. Writ Petition No.
42406 of 2001 (Raj Kumar Gupta Vs.
Chief of the Army Staff, Army Head
Quarter, D.H.Q.P.O. New Delhi and
others). The aforesaid writ petition was
disposed of vide judgment dated 4.1.2002
with a direction to respondent no. 2 to
consider the case of the petitioner for
compassionate
appointment.
Consequently the petitioner appeared for
physical test on 1.7.2002 and his
candidature was rejected. Having failed to
quality in the Army and not being
considered allegedly for appointment in a
clerical job in the civil department the
petitioner has moved this Court by filing
aforesaid writ petition for a direction in
the
nature
of
mandamus
to
the
respondents to issue appointment letter to
him according to his qualification.

4. It is alleged in para 19 of the writ
petition that the candidature of the
petitioner was refused by the authority in
an arbitrary manner. The petitioner claims
that even if he had been declared unfit in
physical test for appointment in the army
he ought to have been considered for
appointment in clerical job in civil
http://www.allahabadhighcourt.nic.in
1All] Raj Kumar Gupta V. Chief of the Army Staff Army Head Quarter and others
139
department for which he is also eligible
being a science graduate and that the
action of the respondents not considering
him even for the post of clerk in the civil
department is illegal without any basis
and is not in consonance with letter and
spirit of the judgment and direction issued
by the Court dated 4.1.2002 in writ
petition no. 42402 of 2001 Raj Kumar
Gupta (Supra).

5. The petitioner in para 24 of the
writ petition has averred that he had been
refused appointment on compassionate
ground because he had approached this
Court. It is further submitted that the
petitioner is full entitled to get the relief
claimed in this writ petition on the
grounds mentioned therein. The counsel
for the petitioner has placed reliance on
the following case laws:

1. ESC 2003 Vol. I Page 583 Smt.
Kanti Srivastava Vs. State Bank of
India and others.

2. ESC 2003 Vol. III page 1602
Durgesh Kumar Tiwari Vs. Chief
General Manager State Bank of India
Lucknow and others

3. Civil and Revenue Cases 2003
Vol. III page 478 Smt. Padma Pathak
Vs.
Managing
Director,
Punjab
National Bank, New Delhi and others.

4.

U.P.
Local
Bodies
and
Education Cases 2002 page 2807 Vol. 3
Dhiraj Kumar Dixit Vs. The General
Manager
(Personnel),
UCO
Bank,
Calcutta and others.

6. The judgments of Smt. Kanti
Srivastava Vs. State Bank of India and
others (supra) has been stayed by the
Division Bench in Special Appeal No.
181 of 2003 vide order dated 25.3.2003
whereas the case of Durgesh Kumar
Tiwari Vs. Chief General Manager, State
Bank of India, Lucknow and others
(Supra) challenged in Special Appeal no.
777 of 2003 has been dismissed by
judgment dated 20.7.2004.

7. In Civil and Revenue Cases
2003 Vol. III page 478 Smt. Padma
Pathak Vs. Managing Director, Punjab
National Bank, New Delhi and others it
has been held that-

"Appointment-Compassionate
ground-Refusal to absorb under scheme
for
employment
of
dependent
of
employees-Dying in Harness-Husband
died due to cancer leaving behind minor
children's
and
widow-Rejection
of
application of application without giving
proper reasons will amount to denial of
social justice and protection."

8. Similarly in U.P. Local Bodies
and Education Cases 2002 page 2807
Vol. 3 Dhiraj Kumar Dixit Vs. The
General Manager (Personnel) UCO
Bank,
Calcutta
and
others
while
considering the validity of Clauses 7 & 8
of the Scheme for Recruitment of
Dependents of Deceased Employee on
Compassionate Ground held that:

"Application
of
the
petitioner
rejected on ground that monthly income
of the family of the deceased was higher
than 60% of the last drawn salary of the
deceased employee. Respondents also
considered
retrial
benefits,
family
pension, group insurance and insurance
policy for determining the family income
of the deceased. Scheme does not permit
an appointment on compassionate ground
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2005
140
except in case falling under clause 7 (d),
which would not only be rare but would
be impossible for any dependent to be
eligible. Clauses 7 and 8 are arbitrary and
irrational.
Respondents
directed
to
consider
the
representation
of
the
petitioner for compassionate appointment
according to his eligibility."

9. Smt. Aradhana Chauhan, counsel
appearing for the respondents submits that
the object of the scheme for providing
appointment on compassionate ground is
to enable the penurious family of the
deceased employee to tide over the
sudden financial crisis and not to provide
employment. She has placed reliance
upon the averments made in the counter
affidavit that the mother of the petitioner
has received approximately a sum of
Rs.2,81,000.00 as post death benefit. On
this basis she contends that no ground
exists
for
providing
employment
assistance to the dependent of the
deceased on compassionate ground as the
family was not in indigent circumstances
and moreover, the family has survived for
more that 5 years, as such there is no
emergency
or
immediate
need
for
compassionate appointment in the instant
case.

10. Relying upon the case of Umesh
Kumar Nagpal Vs. State of Haryana
and others J.T. (1994) 3 SCC-525 it is
urged
that
offering
compassionate
appointment as a matter of course
irrespective of financial condition of the
family
deceased
person
is
legally
impermissible and it can be granted only
within
a
reasonable
period.
She
vehemently contends that the Central
Government
has
framed
scheme
providing 5% quota for compassionate
appointment to the dependent of the
deceased according to the availability of
suitable vacancy. She further submits that
the death rate of DSC is very high hence
all
the
dependents
can
not
be
accommodated under the scheme of
compassionate appointment which is
limited to the prescribed quota earmarked
for this purpose. Her further submission is
that in DSC the civilian cadre is limited
and
evolving
a
civil
post
for
compassionate ground is very rare; that
and the matter of the petitioner had
received attention and had been examined
at various levels. She further submits that
the Government has stipulated a time
frame
for
providing
employment
assistance and according to the revised
procedure, if no vacancy meant for
appointment on compassionate grounds
within prescribed quota accrues within a
period of one year, such cases are not
required to be considered for providing
employment assistance. Repelling the
contention of the petitioner that he has not
been offered a civil post at the time of
death of his father due to non availability
of vacancy on compassionate ground she
submits that no person has been given
appointment superseding the petitioner
and that even at present there is no
vacancy within the prescribed quota to
provide employment to the petitioner.

11. In Hidustan Aeronautics Ltd.
Vs. A. Radhika Thirumalai (Smt.)
(1996) 6 SCC-394 it has been held that in
the absence of any vacancy there is no
entitlement or vested right which may be
taken or exercised by the dependent of the
deceased at any time. The Apex Court has
again in Union of India Vs. Joginder
Sharma, ESC 2002 (4) SC-25 has held
that judicial interference in a discretionary
power of the authorities to provide
appointment on excess of percentage
http://www.allahabadhighcourt.nic.in
1All] Raj Kumar Gupta V. Chief of the Army Staff Army Head Quarter and others
141
reserved
for
such
compassionate
appointment already exhausted is not
proper.

12. Appointment in public service
on compassionate ground has been carved
out as an exception to the normal
procedure
for
recruitment.
The
compassionate appointment is based on
humanitarian approach and that the whole
object of the scheme is to enable the
family to tide over the sudden crisis. In
LIC
Vs.
Asha
Ramchhandra
Ambedkar, (1994) 2 SCC-718 the Apex
Court has settled the legal position that an
appointment on compassionate ground
may be given only in accordance with
the relevant Rules and Guide-lines that
have been framed by the authorities for
this purpose and no person can claim
appointment on compassionate ground
dehorse the Rules and the Guide-lines.

13. In the case of Himanchal Road
Transport Corporation Vs. Dinesh
Kumar, 1996 (4) SCC-560 it has been
held that-

".....In the absence of a vacancy it is
not open to the Corporation to appoint a
person to any post. It will be a gross abuse
of the powers of a public authority to
appoint persons when vacancies are not
available. If persons are so appointed and
paid salaries, it will be a mere misuse of
public
funds,
which
is
totally
unauthorized. Normally, even if the
Tribunal finds that a person is qualified to
be appointed to a post under the kith and
kin policy, the Tribunal should only give
a direction to the appropriate authority to
consider the case of the particular
applicant, in the light of the relevant rules
and subject to the availability of the post.
It is not open to the Tribunal either to
direct the appointment of any person to a
post or direct the authorities concerned to
create a supernumerary post and then
appoint a person to such a post."

14. In the instant case, the petitioner
has failed to qualify in the Army and there
being no vacancy in the civil department
he could not be given appointment under
the
scheme
and
the
rules
for
compassionate appointment. The action of
the respondents in not appointing the
petitioner on compassionate ground can
not be said to be illegal or arbitrary.

15. For the reasons stated above and
in view of the law laid down by the Apex
Court the writ petition is dismissed. No
order as to costs.
Petition Dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.09.2004

BEFORE
THE HON'BLE S.N. SRIVASTAVA, J.

Civil Misc. Writ Petition No. 32788 of 1996

Mohd. Yusuf

...Petitioner
Versus
Board of Revenue U.P. at Allahabad and
others

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Qadeer

Counsel for the Respondents:
Deoraj
S.C.

Evidence Act, 1872-S. 68-Proof of will-if
a person puts his signature to certify
that he is a scribble or an identifier or a
registering officer, he is not an attesting
witness-Record not showing that any of
attesting witnesses were either dead or