# Manoj Kumar Saxena v. State of U.P. & Others

- **Citation:** (2012) 3 ILRA 1233
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2012-10-31
- **Case number:** Civil Misc. Writ Petition No. 267 of 2010
- **Bench:** Tarun Agarwala
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-saxena-v-state-of-u-p-others-42382
- **Pages:** 3

## Headnote

U.P. Government Dying in Harness Rules
1974-Rule
5-Compassionate
appointment-petitioner's father died in
the year 1987-being 12 years old after
getting majority claimed compassionate
appointment-State Government rejected
on ground of delay-quashed by High
Court-on
second
inning
inspite
of
direction of Court-rejection by District
Magistrate on ground of delay-heldunsustainable-order quashed with cost
of
Rs.
20,000/-further
direction
to
consider appointment within 6 weeks.

Held: Para-5

 In the instant case, admittedly, the
petitioner was a minor and was only 12
years of age. The application was moved
upon attaining the age of majority. The
Rule provides that the application can be
filed within five years from the date of
the death of the Government employee.
In the instant case, the application was
filed after six years from the date of
death of the father and consequently the
delay, if any, is of one year only. In the
opinion of the Court, the delay was not
such which could be said to be belated
and, such delay can be condoned in the
circumstances of the given case.
Case Law discussed:
2010 (7) ADJ

## Text

3 All] Manoj Kumar Saxena V. State of U.P. and others
1233
law. There is no prohibition in law to
frame the additional substantial question
of law if the need so arises at the time of
the final hearing of the appeal."

16. In view of the law as discussed
above, the second appeal is dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.10.2012

BEFORE
THE HON'BLE TARUN AGARWALA, J.

Civil Misc. Writ Petition No. 267 of 2010

Manoj Kumar Saxena
 ...Petitioner
Versus
State of U.P. & Others ...Respondents

Counsel for the Petitioner:
Sri Lokendra Kumar
Sri A.K.Shukla
Sri Ram Pratap Yadav

Counsel for the Respondents:
C.S.C.

U.P. Government Dying in Harness Rules
1974-Rule
5-Compassionate
appointment-petitioner's father died in
the year 1987-being 12 years old after
getting majority claimed compassionate
appointment-State Government rejected
on ground of delay-quashed by High
Court-on
second
inning
inspite
of
direction of Court-rejection by District
Magistrate on ground of delay-heldunsustainable-order quashed with cost
of
Rs.
20,000/-further
direction
to
consider appointment within 6 weeks.

Held: Para-5

 In the instant case, admittedly, the
petitioner was a minor and was only 12
years of age. The application was moved
upon attaining the age of majority. The
Rule provides that the application can be
filed within five years from the date of
the death of the Government employee.
In the instant case, the application was
filed after six years from the date of
death of the father and consequently the
delay, if any, is of one year only. In the
opinion of the Court, the delay was not
such which could be said to be belated
and, such delay can be condoned in the
circumstances of the given case.
Case Law discussed:
2010 (7) ADJ

(Delivered by Hon'ble Tarun Agarwala, J.)

1. Heard Sri R.P. Yadav, learned
counsel for the petitioner and the learned
Standing counsel.

2. The petitioner's father died in the
year 1987. At that time, the petitioner was a
minor, being 12 years old and, consequently
upon reaching the age of majority, applied
for appointment on compassionate grounds
under the U.P. Recruitment of Dependents
of Government Servants Dying in Harness
Rules,1974 (hereinafter referred to as the
Rules of 1974), in the year 1993. Since
there was a delay in moving the application,
the matter was referred to the State
Government. The State Government, after
considering
the
matter,
rejected
the
petitioner's application on the ground that it
was
belated.
The
petitioner,
being
aggrieved, filed a writ petition, which was
allowed by a judgement dated 23rd
February, 2000. The writ court held that the
delay could be condoned under the Rules
and accordingly quashed the impugned
order and remitted the matter again to the
Authority concerned to redecide the matter.
The District Magistrate, by the impugned
order dated 20th August, 2003, has again
rejected the application on the ground of
delay. The petitioner, being aggrieved, has
filed the present writ petition.
1234 INDIAN LAW REPORTS ALLAHABAD SERIES [2012

3. Having heard learned counsel for the
parties, the Court is of the opinion that the
District Magistrate had no authority to reject
the application on the ground of delay. The
application can be condoned under Rule 5 of
the Rules of 1974 which provides that the
delay can be condoned only by the State
Government. In the instant case, the matter
was earlier referred to the State Government,
which it refused to condone the delay and the
same was questioned by the High Court. The
High Court had categorically stated that there
was no undue delay and that the rejection of
the application for appointment had caused
undue hardship to the petitioner. In spite of
these specific directions being issued by the
High Court in its earlier judgement, the
District Magistrate had the gall and cheek to
reject the petitioner's application on the same
ground, which had already been quashed by
the High Court. Such attitude of the District
Magistrate was totally unwarranted and
could not be justified.

4. In Vivek Yadav Vs. State of U.P.
and others 2010 (7) ADJ. A a Division
Bench of this Court had the occasion to
consider Rule 5 of the Rules, 1974 and held:

"A perusal of Rule 5 would show that
an
application
for
employment
on
compassionate basis is to be made within
five years from the date of death of the
deceased Government servant. There is a
proviso
conferring
power
upon
the
Government for relaxing the time-limit fixed
for making such application, where the
Government is of the opinion that it causes
undue hardship and for dealing with the case
in a just and equitable manner. Reading of
this rule would demonstrate that the
application must be by a competent person,
who is competent to make it. A minor,
therefore, could not have made application.
The
time-limit
for
an
application
contemplated by the rule, therefore, could
only be read to mean 'by a competent
person', in other words, who has attained the
age of majority. In a case, where the
applicant is minor, it would not be possible
for the minor to make an application for
various reasons including that he is minor
and as such he cannot be appointed to a post
in the Government. Rule 5, therefore, will
have to be read in such manner that it gives
effect to the policy of the Government, which
is to provide employment to a member of the
family of a government employee, who dies
in harness, so as to mitigate the hardship.
The issue whether the family of the deceased
over long passage of time continues to face
the hardship, would be examined on the
merits of the claim. Rule 8 of the Rules, 1974
itself contemplates that a candidate seeking
appointment under the Rules must not be less
than 18 years of age at the time of
appointment. In the instant case, as averred
by the appellant, his mother was uneducated
or illiterate, he was a minor though the elder
son and there were elder sisters. Therefore,
in such cases, considering the object of the
Rules, the proviso to Rule 5 must normally
be exercised, as for the purpose of dealing
with the cases in a just and equitable
manner. In exercising such discretion, no
doubt, the authority exercising the discretion
will examine the record before him."

5. The Division Bench held that the
proviso to Rule-5 confers a power upon the
Government to relax the time period in
making the application, where in its opinion,
the delay would cause undue hardship and
for dealing with a case in a just and equitable
manner. In the instant case, admittedly, the
petitioner was a minor and was only 12 years
of age. The application was moved upon
attaining the age of majority. The Rule
provides that the application can be filed
within five years from the date of the death
3 All] Waliullah Beg & Anr. V. District Deputy Director of Consolidation Lucknow & Ors 1235
of the Government employee. In the instant
case, the application was filed after six years
from the date of death of the father and
consequently the delay, if any, is of one year
only. In the opinion of the Court, the delay
was not such which could be said to be
belated and, such delay can be condoned in
the circumstances of the given case.

6. In the light of the aforesaid, the
District Magistrate committed a manifest
error in rejecting the petitioner's application
on the ground of delay which can not be
sustained and is quashed. The writ petition is
allowed with cost, which the Court imposes
at Rs. 20,000/-, which shall be paid by the
respondent to the petitioner within six weeks
from today. The matter is again remitted to
the Authority concerned to decide the matter
on merits within six weeks from the date of
production of a certified copy of the order.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 29.10.2012

BEFORE
THE HON'BLE ANIL KUMAR, J.

CONSOLIDATION No. - 430 of 2012

Waliullah Beg & Anr.

 ...Applicant
Versus
District Deputy Director Of Consolidation
Lucknow & Ors.

 ...Respondents

Counsel for the Petitioner:
Sri M.A. Siddiqui

Counsel for the Respondents:
C.S.C

U.P. Consolidation of Holding Rules
1954-Rule 65 (1-A)-Transfer of pending
revision from one D.D.C. to anotherwithout Notice to other party-without
following
the
procedure
prescribed
under Section 24 C.P.C.-transfer order
held-unsustainable-quashed.

Held: Para-11

Thus as the opposite party no.1 has
passed the impugned order without
providing
any
opportunity
to
the
petitioners
thereby
transferring
the
matter from opposite party no.3 to
opposite party no.2 is in contravention of
principles of natural justice , as it is a
settled law if any order has a civil
consequence the same shall be passed
after providing adequate opportunity of
hearing to the parties concerned .
However, if the same is passed ex parte
behind the back of person who is
aggrieved then the same will be arbitrary
as well as in contravention to the
principles of natural justice, cannot be
sustained under law.
Case Law discussed:
(2000) 10 Supreme Court Cases 23; 2002 (93)
RD 563; Zohra Begum ( Smt.) and others Vs.
VIIth ADJ Bareilly and another decided on 20
April, 2000 and M/s Moder hardwares and
others Vs. prescribed Authority, Dehradun and
others decided on July,26,1990

(Delivered by Hon'ble Anil Kumar, J.)

1. By means of present writ petition,
petitioners have challenged the impugned
order dated 20.7.2012(Annexure no.1)
passed by opposite party no.1/ Collector/
District Deputy Director of Consolidation,
Lucknow .

2. Sri M.A. Siddiqui, learned counsel
for the petitioners while challenging the
impugned order submits that aggrieved by
the order passed by the Consolidation
Officer
,
Mohanlalganj,
Lucknow,
petitioners filed a revision under Section 48
of the Consolation of Holdings Act before
the Deputy Director of Consolidation,
Lucknow for redressal of their grievances.