# Mahendra Pratap Sharma v. State of U.P. and others

- **Citation:** (2012) 1 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-01-24
- **Case number:** Special Appeal No. 148 of 2008
- **Bench:** Rakesh Tiwari, Dinesh Gupta
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mahendra-pratap-sharma-v-state-of-u-p-and-others-42138
- **Pages:** 9

## Headnote

Servant, Dying in Harness Rules 1974Rule 5 (2) (3) as Amended by G.O. At
13.10.2013-Compassionate
Appointment-claimed
after
expiry
of
statutory period-denied on ground of
non
consideration
of
delay-non
appointment on compassionate ground
can not be treated as reservation-which
itself
violative
the
rights
of
other
claimants-amendment with prospective
effect-can
not
be
enforced
retrospectively-held-refusal
of
appointment-justified.

Held: Para 29

There is also no provisions of keeping
vacancy reserved for the minors of
dependents of government servants who
died in harness. The 51% appointments
under compassionate appointments is to
be made in the existing vacancies for
minors in each year. If reservation of
vacancies for minors in such manner is
permitted, many a deserving dependents
of government servants who have died in
harness
and
living
in
indigent
circumstances would be deprived of the
benefit of dependents U.P. Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974. The Rule
which is a beneficial piece of legislation
would loose its beneficial part and turn
into an unworkable Rule.
Case law discussed:
2010 (7) A.D.J. -1 (DB); 2010 (10) ADJ-289;
1996 (5) SCC-308; 2008 (2) A.D.J. 433 (DB);
2000
(2)
E.S.C.
967;
2005
(3)
U.P.L.B.E.C.2426; 1993 (supp) E.S.C 37 (L.B.);
2009 (4) A.D.J.-89; 2009 (120) F.L.R. 164;
2008 Vol.6 A.D.J. 741 (DB); 2003 (1)
U.P.L.B.E.C.; ALR-1976 SC-1766; AIR 2006 SC
2743

## Text

1 All] Mahendra Pratap Sharma V. State of U.P. and others
13
of incoming Vidhan Sabha Elections.
However, it will be open for the
concerning District Magistrates to take
such action in accordance with law
whether under Section 144 Cr.P.C. or
otherwise or as they consider necessary
and appropriate in their discretion in the
circumstances of individual case.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2012

BEFORE
THE HON'BLE RAKESH TIWARI,J.
THE HON'BLE DINESH GUPTA,J.

Special Appeal No. 148 of 2008

Mahendra Pratap Sharma
 ...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioners:
Sri Bhoopendra Nath Singh

Counsel for the Respondents:
Sri Yogendra Yadav
C.S.C.

U.P. Recruitment of Dependant of Govt.
Servant, Dying in Harness Rules 1974Rule 5 (2) (3) as Amended by G.O. At
13.10.2013-Compassionate
Appointment-claimed
after
expiry
of
statutory period-denied on ground of
non
consideration
of
delay-non
appointment on compassionate ground
can not be treated as reservation-which
itself
violative
the
rights
of
other
claimants-amendment with prospective
effect-can
not
be
enforced
retrospectively-held-refusal
of
appointment-justified.

Held: Para 29

There is also no provisions of keeping
vacancy reserved for the minors of
dependents of government servants who
died in harness. The 51% appointments
under compassionate appointments is to
be made in the existing vacancies for
minors in each year. If reservation of
vacancies for minors in such manner is
permitted, many a deserving dependents
of government servants who have died in
harness
and
living
in
indigent
circumstances would be deprived of the
benefit of dependents U.P. Recruitment
of Dependents of Government Servants
Dying in Harness Rules, 1974. The Rule
which is a beneficial piece of legislation
would loose its beneficial part and turn
into an unworkable Rule.
Case law discussed:
2010 (7) A.D.J. -1 (DB); 2010 (10) ADJ-289;
1996 (5) SCC-308; 2008 (2) A.D.J. 433 (DB);
2000
(2)
E.S.C.
967;
2005
(3)
U.P.L.B.E.C.2426; 1993 (supp) E.S.C 37 (L.B.);
2009 (4) A.D.J.-89; 2009 (120) F.L.R. 164;
2008 Vol.6 A.D.J. 741 (DB); 2003 (1)
U.P.L.B.E.C.; ALR-1976 SC-1766; AIR 2006 SC
2743

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

1. Heard learned counsel for the
parties and perused the record.

2. This special appeal is preferred
challenging the validity and correctness of
the judgment and order dated 6.11.2007
by which the Civil Misc. Writ Petition
No. 11036 of 2006, Mahendra Pratap
Sharma versus State of U.P. and others
has been dismissed. The appellant also
prays for setting aside the order dated
18.9.2002 passed by respondent no.2,
Director, Panchayat Raj, U.P. Lucknow
rejecting the claim of the appellant for
compassionate appointment under the
U.P. Recruitment of Dependents of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as "
1974 Rules") which was impugned in the
writ petition.
14 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. At the time of admission
following order was passed by the
Division
Bench
of
this
Court
on
22.1.2008.

" Heard Sri B.N. Singh on behalf of
the appellant. Sri Yogendra Yadav
appears for the respondents.

The appeal seeks a question with
respect
to
interpretation
of
U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules,
1974.
The
matter
requires
consideration. The appeal is admitted.
The appeal be listed for final hearing in
the week beginning on 12.2.2008."

4. The ground of challenge by the
appellant is that the order dated 18.9.2002
passed by the Director Panchayat Raj U.P.
in pursuance of the judgment dated
6.5.2002 in Civil Misc. Writ Petition
18812 of 1001, M.P.Sharma versus State
of U.P. and others is illegal and is liable
to be set aside by which the Court
directed respondent no.2 to consider the
question of condonation of delay. The
authority, however, rejected the prayer for
condonation of delay by order dated
18.9.2002 on the ground of latches of
more than 5 years in moving the
application
for
compassionate
appointment. The power of condonation
of delay vests the authority with power of
relaxation in limitation to the applicant in
moving an application for appointment on
compassionate grounds. It is stated that
the order dated 18.9.2002 suffers from
non-application of mind, non-speaking
and against the judgment dated 6.5.2002.

5. Learned counsel for the appellant
has relied upon judgment in 2010(7)
A.D.J.-1 (DB), Vivek Yadav versus
State of U.P. and others and submits that
similar controversy has been decided by
Division Bench of this Court in which
application
for
compassionate
appointment was rejected by respondents
under Rule 5 of 1974 Rules. In that case,
the father of the petitioner had died on
26th May, 1986. It was argued therein
that as soon as the petitioner became
major, he moved an application for
compassionate appointment but the writ
petition was dismissed by the learned
Single Judge. On appeal being filed, the
appellate Court set aside the judgment of
the learned Single Judge. The same
judgment has been relied upon in Subhas
Yadav versus State of U.P. and others,
2010 (10) ADJ-289 . In the judgment of
the Apex Court the case of State of
Haryana versus Rani Devi, 1996 (5)
SCC-308 was distinguished in view of
rule 5 of 1974 Rules. The father of
applicant died on 8.8.1994 when he was 6
years old. He moved an application for
compassionate appointment on 5.5.2005
on attaining the majority which was
rejected on the ground that the application
was moved after 11 years by the applicant
from the date of death of the government
servant. The appellate Court quashed the
order of rejection and the order passed by
the learned Single Judge directing the
respondents to consider the case for
appointment of the appellant.

6. It is also stated that similar Rule
was considered by the Division Bench of
this Court in judgment reported in 2008
(2) A.D.J. 433 (DB), Chairman-cumManaging
Director,
U.P.
Power
Corporation
Ltd.
versus
Jitendra
Pratap Singh and 2000 (2) E.S.C. 967,
Manoj Kumar Saxena versus District
Magistrate, Bareilly and others wherein
the father of the applicant Manoj Kumar
1 All] Mahendra Pratap Sharma V. State of U.P. and others
15
died on 13.8.1987 when he was 12 years
old. In this case also the applicant moved
an
application
for
appointment
on
compassionate grounds when he attained
majority.
His
application
was
also
rejected on the ground of delay. The
learned Single Judge considering the
judgment of the two Division Benches
quashed the order of rejection and held
that as the applicant moved an application
within 5 years of his attaining majority as
such there is no delay in moving
application and directed the concerned
authorities to take decision on merit on
the application.

7. Relying upon the case of Manoj
Kumar Saxena's case similar view was
taken by the learned Single Judge of this
Court in the case of Dharmendra Singh
versus
State
of
U.P.,
2005
(3)
U.P.L.B.E.C. 2426 relying upon the case
of Manoj Kumar Saxena's case. In Sunil
Kumar
Srivastava
versus
Collector/District
Magistrate,
Sultanpur, 1993 (supp) E.S.C.37 (L.B.)
when father of the petitioner died on
9.9.1973,
U.P.
Recruitment
of
Dependents of Government Servants
Dying in Harness Rules, 1974 was not in
existence. It came to be operative on
31.12.1973.In that case it was held that
the dying in harness rule is social
legislation. It should not be considered in
strict sense. Similar view is said to have
been taken by the learned Single Judge of
this Court in Manoj Kumar versus State
of U.P. and others, 2009 (4) A.D.J.-89
wherein the father of the applicant died in
harness on 17.9.1987 when the petitioner
was minor. After he became major, he
moved an application on 27.8.1994 which
was rejected on 21.3.1997. In paragraph 7
of the judgment the Court quashed the
impugned order therein holding that 1974
Rules extend consideration of statutory
right to dependents of deceased employee
in Government job and it is incumbent
upon the State authorities to consider the
hardship of livelihood which is a
fundamental right guaranteed under the
Constitution.

8. It is further stated that in 2009
(120) F.L.R. 164, Shiv Murati versus
State of Andhra Pradesh Government,
the scheme providing for compassionate
appointment on retirement on medical
invalidation was quashed by Andhra
Pradesh High Court holding such scheme
to be violative of Articles 14 and 16 of the
Constitution of India but in appeal
Supreme Court quashed the judgment
holding the scheme to be constitutionally
saved by Articles 14 and 16 of the
Constitution of India. It is stated that
judgment of the learned Single Judge
impugned in special appeal is against the
judgment of the aforesaid Supreme Court,
hence the provision of Rule 5 of the
Dying in Harness Rules, 1974 is not
applicable and the view taken by the
learned Single Judge in paragraphs 19,20
and 22 of the judgment is contrary to rule
5 which had been affirmed by Division
Benches of the Andhra Pradesh High
Court referred to above.

9. He then submits that the judgment
passed by the learned Single Judge is also
against the binding precedence of the Coordinate Benches and Division Bench
judgments of this Court referred to above
and in view of the Division Bench
judgment in Kuldeep Tripathi versus
Ram Bahadur and others, 2008 Vol.6,
A.D.J.741 (DB) wherein it was held that
the learned Single Judge or Division
Bench is bound by earlier judgment
passed by same strength or Division
16 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
Benches and if Judges not agreed, has to
refer the matter to Chief Justice for
constituting larger Bench and similarly in
Vijay Bihari Srivastava versus U.P.
Posted Primary Cooperative Bank Ltd.
2003(1) U.P.L.B.E.C., five Judges Bench
of this Court observed that a division
Bench cannot hold that an earlier full
Bench decision is not binding precedence
due to subsequent judgment of the Apex
Court as such the impugned judgment is
contrary to previous binding judgments of
this Court passed by the learned Single
Judges and Division Benches.

10. He next submits that the learned
Single Judge in his decision relied on
various Supreme Court judgment in
which Rule 5 of Dying in Harness Rule
1974 was not under consideration and
those judgments have no universal
application in all cases of compassionate
appointment.
The
Supreme
Court
judgments are to be interpreted and
applied in particular facts of the case.
Same view is said to be taken by the
Supreme Court in Regional Manager
and others versus Pawan Kumar
Dubey and others, ALR- 1976 SC-1766
which clarify how the Supreme Court
judgment has to be interpreted and
applied in particular facts of the case.

11. The counsel for the appellant
argues that learned Single Judge in the
impugned
judgment
has
considered
certain facts which have not been
considered by respondent no.2 in the
impugned order dated 19.9.2002. Those
facts have been taken from the counter
affidavit which has been sworn by
deponent on the basis of information
received from file without enclosing any
documents and such averment cannot be
accepted in view of the law laid down by
the Apex Court in Mohindra Singh Gill
and others versus Chief Election
Commission of India and others.

12. Learned counsel for the
appellant submits that the learned Single
Judge has not considered paragraphs 16
and 19 of the writ petition in which the
appellant has narrated his miserable
family
condition
and
continuing
disturbing economical condition which
was being taken care of by the maternal
uncle. Paragraphs 16 and 19 of the writ
petition read thus:-

" 16. That it is stated that family
pension paid to the petitioner will not be
paid to the petitioner after attaining the
age of 25 years i.e. 1.2.2007 as such
petitioner would be hand to mouth and
shall not be in a position to maintain
himself and his younger brother.

19. That the petitioner's family were
solely dependent on the salary earned by
late petitioner's father and petitioner's
father was having no other property or
any income from any movable property
and similar is a position of the uncle of
the petitioner who has been maintaining
the petitioner and since family pension
received by the petitioner is very meager
and on Rs.2200/-, petitioner or his
younger brother son cannot continued his
studies and maintained themselves as
such condition of the petitioner's family is
very pitiable and petitioner was forced to
left his studies but respondents have not
considered
the
petitioner
pitiable
condition due to which petitioner and his
younger brother's carrier is at stake."

13. Learned counsel for the
respondents submits that the appellant
cannot claim compassionate appointment
1 All] Mahendra Pratap Sharma V. State of U.P. and others
17
after a lapse of more than five years since
the date of death of the deceased (father
of the appellant) as provided under rule 5
para 2(3) of the 1974 Rules which has
been amended vide G.O.no. 6/12/73/Ka2/93 dated 13.10.1993. It is stated that
neither the mother of the appellant nor
any member of his family including the
appellant had filed any application within
five years since the date of death of the
deceased, the father of the appellant.

14. He also submits that the
appellant cannot get appointment in
government services due to poverty and
other reasons if the appellant is given
compassionate appointment after lapse of
more than five years since the date of the
death of his father the same would create
severe difficulty to the State respondents
as 5% of vacancy in the relevant year only
can be filled up by appointment on
compassionate ground; that the Director,
Panchayati Raj Uttar Pradesh, Luckow
had already decided the representation
dated 11.6.2002 made by the appellant
vide
order
dated
18.9.2002
after
considering his comment dated 19.8.2002
submitted by the then District Panchayati
Raj Officer and the entire aspects of the
case. There is no illegality or irregularity
in the impugned judgment and order dated
6.11.2007 passed by the learned Single
Judge and the present special appeal is
liable to be dismissed with costs.

15. It is stated that from the record it
is apparent that the petitioner's father late
Ram Kishore Sharma was working as
Village Panchayat Officer and died in
harness on 2.8.1989; that petitioner's
mother Smt. Satyawati Devi was offered
benefit of 1974 Rules by the respondents
but she by her letter dated 9.3.1992
informed that due to mental stress she
would not like to serve the department
and that the widow of the deceased
employee also informed the authorities on
30.8.1989 that her two sons aged about
five years and two years respectively and
a daughter aged about 12 years were
minor and, therefore, none of them were
eligible for compassionate appointment at
that time. She also sent a letter dated
9.3.1992 requesting the authorities to
keep a post vacant till one of her sons
becomes major to get appointment.
Further the petitioner's application dated
28th February 2001 which was received
in the concerned office on 11th April
2001 was considered and by order dated
9th May 2001 it was rejected in view of
Rule 5 of 1974 Rules on the ground that
the
representation
has
rightly
been
rejected as belated as such the petitioner
cannot be considered for compassionate
appointment.

16. The mother of the petitioner also
subsequently died on 19.3.1995. She was
getting family pension in her lifetime.
After her death, it was paid to the
unmarried daughter, i.e. sister of the
petitioner and after her marriage, the
family pension was sanctioned to the
minor sons through their legal guardian
Sri Rajveer Sharma. The petitioner whose
date of birth is 24.1.1983 passed his High
School in 1997 and Intermediate in 2000
and has graduated in 2004 the appellant
submitted an application on 28.2.2001
before the District Panchayat Raj Officer,
Aligarh,
claiming
compassionate
appointment under 1974 Rules due to
death of his father on 2.8.1989 stating that
as now he has attained age of majority, he
should be considered for the said
appointment. He submitted a reminder
letter dated 4.8.2001 and thereafter
approached this Court in writ petition no.
18 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
18812 of 2002 having received no
response from the respondents.

17. The aforesaid writ petition was
finally disposed of vide judgment dated
6.5.2002, permitting the petitioner to
make a fresh representation before the
Director,
Panchayat
Raj,
U.P.
Government who was further directed to
decide the same within a period of three
months. Pursuant to the said order, the
petitioner submitted his representation
dated
11.6.2002
to
the
Director,
Panchayat Raj, Lucknow who rejected the
same by order dated 18.9.2002 impugned
in this writ petition. In order to complete
the facts, Sri Singh, learned counsel for
the petitioner has informed that the
petitioner had obtained his graduation
degree
in
Commerce
from
Agra
University in 2004.

18. The contention of learned
counsel for the respondents is that his
claim after the death of father, the
petitioner's mother Smt. Satyawati Devi
submitted an application dated 30th
August 1989 requesting to provide
compassionate appointment to one Sri
Kishan Lal who was younger brother of
her deceased husband. The claim could
not be accepted since the brother of the
deceased employee was not entitled for
compassionate appointment under 1974
Rules. In rebuttal it is submitted by the
petitioner that it is not disputed that the
claim of the petitioner's uncle for
compassionate appointment was rejected
by the respondents but it is said that
thereafter
his
mother
informed
the
respondents that after attaining majority
one of her son may be provided
compassionate appointment. It is stated
that the petitioner and his family members
are not getting any help from his uncle
who is residing separately. It is also stated
that in a number of cases, the State
Government has made compassionate
appointment after a long time relaxing
five years requirement under 1974 Rules
and, therefore, adherence to the said time
schedule in the case of the petitioner is
apparently arbitrary and discriminatory.

19. The contention of learned
counsel for the petitioner appellant is that
proviso to Rule 5 of 1974 Rules as
amended
vide
notification
dated
13.10.1993 by (Third Amendment) Rules,
1993,
it
was
open
to
the
State
Government to relax limitation of five
years for making appointment under 1974
Rules in appropriate cases but in the case
of the petitioner, the said discretion has
not been exercised as such the impugned
order is liable to be set aside.

20. The point which requires
consideration in this case is as to whether
a minor dependent upon his father can be
considered
for
appointment
as
compassionate grounds or after attaining
majority
can
claim
compassionate
appointment and whether the authorities
must
relax
the
normal
recruitment
procedure in his favour though other
eligible persons in the family of the
deceased ( mother of the petitioner in this
case ) did not accept the offer. Whether
the offer of appointment in such a
situation is a must even though the family
has survived well for such a long time.

21. The purpose and objective of
compassionate appointment is to provide
immediate succour to the bereaved family
whose sole bread earner has died in
harness. It is not a source of recruitment.
It only enables the family to tide over the
sudden situation crisis and not to give a
1 All] Mahendra Pratap Sharma V. State of U.P. and others
19
member of such family a post much less a
post held by the deceased. It is not a kind
of right of succession in the service where
the employee has died in harness. The
compassionate appointment has always
been considered to be an exception to the
normal mode of recruitment to be
exercised only in deserving cases where
the family of the deceased is left in cold
penury on death of bread earner. The
Rules have been made for the family of
the deceased employee in consideration of
services rendered by him and legitimate
expectations, change in status and affairs
of the family endangered by the erstwhile
employment
which
are
suddenly
upturned. It cannot be allowed as a matter
of course. There is no question of
reserving a vacancy for the Dependents of
deceased employee so as to provide them
as and when they claim the same after
acquiring requisite qualification, age etc.
If compassionate appointment is allowed
after reasonably long time, it would defeat
the very object of assisting the family of
deceased employee to tide over the
sudden crisis resulting due to the death of
bread earner, leaving his/her family in
penury and without any means of
livelihood.
The
matter
has
been
considered by the Apex Court as well as
this Court time and again and it would be
useful to have a bird's eye view on some
of such authorities of Apex Court.

22. If the family has sufficient
means to survive for years together and
can take care of the minors who have
turned into major after undergoing
educational qualification etc. that itself
would be evident to show that now the
family is not in financial crises as it could
have at the time of sudden demise of the
deceased
necessitating
compassionate
appointment at a late stage i.e. after
several years.

23. In State of Jammu & Kashmir
and others Vs. Sajad Ahmed Mir AIR
2006 SC 2743 similar facts were involved
and considering the same, the Apex Court
held that when the deceased employee
died in 1987 and his son approached the
authorities in 1999, i.e., more than a
decade, the same itself disentitles him to
claim any benefit of compassionate
appointment and observed that the view
taken by the High Court in favour of the
dependant of the deceased employee
amounts to misplaced sympathy. It
reiterated the objective of compassionate
appointment as under:

" We may also observe that when the
Division Bench of the High Court was
considering the case of the applicant
holding that he had sought 'compassion',
the Bench ought to have considered the
larger issue as well and it is that such an
appointment is an exception to the
general rule. Normally, an employment in
Government or other public sectors
should be open to all eligible candidates
who can come forward to apply and
compete with each other. It is in
consonance with Article 14 of the
Constitution. On the basis of competitive
merits, an appointment should be made to
public office. This general rule should not
be departed except where compelling
circumstances demand, such as, death of
sole bread earner and likelihood of the
family suffering because of the setback.
Once it is proved that in spite of death of
bread earner, the family survived and
substantial period is over, there is no
necessity to say 'goodbye' to normal rule
of appointment and to show favour to one
at the cost of interests of several others
20 INDIAN LAW REPORTS ALLAHABAD SERIES [2012
ignoring the mandate of Article 14 of the
Constitution of India."

24. Admittedly, the petitioner's
father died on 2.8.1989 when the old Rule
5 was in operation. At the relevant time
application
for
compassionate
appointment was to be submitted within a
reasonable period of time. Therefore,
there was no provision for relaxation of
period
of
limitation
by
the
State
Government. On the contrary, a perusal of
the then existing Rule 5 makes it clear
that it stresses upon to offer employment
on compassionate ground to the deserving
persons of the family without any delay to
enable it to survive . Meaning thereby that
the application ought to have been
submitted by the eligible dependent of the
deceased employee without any undue
delay and with utmost expediency. Any
delayed application was liable to be dealt
with as if the family has sufficient means
to survive and, therefore, would make him
disentitled
for
compassionate
appointment. The amendment made by
notification in 1993 is prospective and
cannot help the petitioner to take any
advantage of the new Rule since the cause
of action in his case arose in 1989 when a
different provision was in existence.
Moreover, the discretion for condoning
the delay is conferred by the proviso
under Rule 5 as it stood after the
amendment, gives a discretion to the State
Government and that too is preceded by a
condition
for
consideration
of
appointment on compassionate grounds in
special cases i.e. where undue hardship
has caused to the family of the deceased
which is living in indigent circumstances
and it is expedient and where it is in the
deserving case it would be in the interest
of justice that the provision pertaining to
limitation of five years period needs to be
relaxed and in other cases itt does not give
any right to a person to claim relaxation
thereafter. In the facts and circumstances
of the case, in our considered view, Rule
5 as brought on the statute book by
notification dated 13.10.1993 cannot help
the
petitioner
for
maintaining
his
application
for
compassionate
appointment after more than 12 years.

25. Paragraphs 16 and 19 aforesaid
do not give an impression that the family
of the deceased was in immediate need of
financial assistance as the petitioner has
averred therein that he would be hand to
mouth after his attaining 25 years of age.
The argument that the petitioner is living
separately with his uncle is also belied by
paragraph 19 of the writ petition and even
if he is living along with his uncle, it
cannot be said that the family is living in
indigent circumstances for the reasons
given herein above in this judgment.

26. Admittedly, the mother of the
appellant had requested the authorities to
provide compassionate appointment to the
brother of the deceased which was
declined by the authorities and in that
circumstances, she prayed for reservation
of a post for one of her sons on
compassionate ground. It is also an
admitted fact that the family claims to be
living
separately
from
their
uncle.
Moreover, it has survived more than 22
years after the death of the deceased. The
children have got education as the court
has been informed that the appellant has
graduated in 2004. What is his present
status is not known to the counsel for the
appellant i.e. as to whether he is serving
any where or not and how is he maintain
his family too.
1 All] Rameshwar Prasad Shukla V. The District Inspector of School and another
21

27. The aforesaid admitted facts
clearly establish that the family was not in
indigent circumstances as the widow of
the deceased has refused compassionate
appointment for herself and instead
desires appointment to be given to the
brother of the deceased for she was
compelled to do so by the circumstances
as her children were minors at that time.
She could have accepted the appointment
if the family was in dire financial crisis.
Even
though
the
compassionate
appointment was not accepted by the
mother of the applicant and she has been
able to raise her children and to give good
education.

28. It may also be noted that the
applicant did not submit any application
for condonation of delay. The power to
condone
delay
vests
in
the
State
Government.

29. There is also no provisions of
keeping vacancy reserved for the minors
of dependents of government servants
who
died
in
harness.
The
51%
appointments
under
compassionate
appointments is to be made in the existing
vacancies for minors in each year. If
reservation of vacancies for minors in
such manner is permitted, many a
deserving dependents of government
servants who have died in harness and
living in indigent circumstances would be
deprived of the benefit of dependents U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974. The Rule which is a
beneficial piece of legislation would loose
its beneficial part and turn into an
unworkable Rule.

30. For all the reasons stated above,
the respondents cannot be directed to give
compassionate
appointment
to
the
appellant after the death of deceased
employee on 2.8.89 and on attaining the
majority on 28.2.2001 i.e. more than 22
years.

31. The writ petition is accordingly,
dismissed. No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.01.2012

BEFORE
THE HON'BLE SYED RAFAT ALAM,C. J.
THE HON'BLE RAN VIJAI SINGH,J.

Special Appeal No. 176 of 2012

Rameshwar Prasad Shukla ...Petitioner
Versus
The District Inspector of School and
another

 ...Respondents

Counsel for the Petitioner:
Sri Ashok Kumar Srivastava

Counsel for the Respondents:
C.S.C.

Constitution of India-Article, 226-Writ
Petition-claiming
salary
from
state
exchequer-without
impleading
State
Government-petition
itself
not
maintainable-working on basis of interim
order-for
considerable
period-after
dismissal of petition being merged with
final judgment-equity can not prevail
over statutory provision-view taken by
Learned Single Judge-not suffer from
any error.

Held: Para 8

In view of above, we are of the view that
since the petitioner-appellant filed the
writ petition claiming salary from the
State exchequer, therefore, he ought to
have impleaded the State as a party and
in the absence of the State as a party in