# Manoj Kumar v. Ziladhikari & Ors

- **Citation:** (2024) 1 ILRA 1195
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-04
- **Case number:** Writ-A No. 6119 of 2001
- **Bench:** Kshitij Shailendra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/manoj-kumar-v-ziladhikari-ors-50850
- **Pages:** 4

## Headnote

A. Service Law - UP Recruitment of
Dependants of Government Servant Dying
in Harness Rules, 1974 - Compassionate
appointment - Nature - Termination order
was
passed
on
the
ground
that
appointment is temporary in nature and
service is no more required - Validity
challenged - Held, merely because the
nature of appointment of the petitioner
described as 'temporary' in the letter of
appointment, the Rules, 1974, being
statutory Rules, nowhere provide that the
compassionate
appointment
of
an
appointee is temporary in nature - High
Court disapproved the view taken by the
respondents
in
the
impugned
order
terming the nature of appointment of a
compassionate appointee as temporary in
nature. (Para 6 and 8)

Writ petition allowed. (E-1)

List of cases cited:

## Text

1 All. Manoj Kumar Vs. Ziladhikari & Ors.
1195
advantage of his own wrong. It would
perpetrate injustice rather than doing
justice to the person wronged.

34. We are conscious and mindful
that even in absence of statutory provision,
normal rule is 'no work no pay'. In
appropriate cases, however, a Court of
Law may, nay must, take into account all
the facts in their entirety and pass an
appropriate order in consonance with law.
The Court, in a given case, may hold that
the person was willing to work but was
illegally and unlawfully not allowed to do
so. The Court may in the circumstances,
direct the Authority to grant him all
benefits considering 'as if he had worked'.
It, therefore, cannot be contended as an
absolute proposition of law that no
direction of payment of consequential
benefits can be granted by a Court of Law
and if such directions are issued by a
Court, the Authority can ignore them even
if they had been finally confirmed by the
Apex Court of the country (as has been
done in the present case). The bald
contention
of
the
appellant-Board,
therefore, has no substance and must be
rejected."

38. Accordingly, in view of above,
writ petition succeeds and is allowed. The
order dated 12.09.2022 is hereby quashed.
Writ of mandamus is issued to the
concerned competent respondent in the
matter to confer the benefit of promotion
upon petitioner w.e.f date of his junior Mr.
Utkarsh
Bhardwaj
has
been
given
promotion with all consequential benefits.
Appropriate orders shall be passed by the
authority within a period of thirty days of
presentation of certified copy of this order.

39. Parties are left to bear their own
costs.
----------
(2024) 1 ILRA 1195
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.12.2023

BEFORE

THE HON'BLE KSHITIJ SHAILENDRA, J.

Writ-A No. 6119 of 2001

Manoj Kumar ...Petitioner
Versus
Ziladhikari & Ors. ...Respondents

Counsel for the Petitioner:
Sri Niraj Upadhyay, Sri J.S. Baghel

Counsel for the Respondents:
C.S.C.

A. Service Law - UP Recruitment of
Dependants of Government Servant Dying
in Harness Rules, 1974 - Compassionate
appointment - Nature - Termination order
was
passed
on
the
ground
that
appointment is temporary in nature and
service is no more required - Validity
challenged - Held, merely because the
nature of appointment of the petitioner
described as 'temporary' in the letter of
appointment, the Rules, 1974, being
statutory Rules, nowhere provide that the
compassionate
appointment
of
an
appointee is temporary in nature - High
Court disapproved the view taken by the
respondents
in
the
impugned
order
terming the nature of appointment of a
compassionate appointee as temporary in
nature. (Para 6 and 8)

Writ petition allowed. (E-1)

List of cases cited:

1. Ravi Karan Singh Vs St. of U.P. & ors; 1999
(3) UPLBEC 2263

2. Budhhi Sagar Dubey Vs DOIS; (1993) 1
UPLBEC 197
1196 INDIAN LAW REPORTS ALLAHABAD SERIES
3. Gulab Yadav Vs St. of U.P. & ors; (1991) 2
UPLBEC 995

4. Dhirendra Pratap Singh Vs DIOS & ors;
(1991) 1 UPLBEC 427

5. Special Appeal No.348 of 2002; Sanjai Kumar
Vs Deputy Director General (NCC) Directorate,
U.P. Lucknow & ors. decided on 16.07.2002

6. Mohinder Singh Gill & anr Vs Chief Election
Commissioner, New Delhi & ors; AIR 1978 SC
851

(Delivered by Hon'ble Kshitij Shailendra,
J.)

1. Heard Sri J.S. Baghel, learned
counsel for the petitioner and Sri I.P.
Srivastava,
learned
Additional
Chief
Standing Counsel for the State-respondents.

2. Petitioner's father namely Munna
Lal was working as a permanent Clerk in
the office of respondent no.2 and he died in
harness on 09.02.1990, whereafter a
supernumerary post was created and the
petitioner- Manoj Kumar was offered
appointment on compassionate grounds on
27.09.1997. The petitioner started working
on the post and after a period of three
years, the order impugned was passed on
22.01.2000 observing that in view of UP
Temporary
Government
Servants
(Termination of Services) Rules, 1975, the
services of the petitioner were no more
required and the same accordingly, would
be treated as terminated from the date of
receipt of notice. It is the said order which
is under challenge in the present writ
petition.

3. Learned counsel for the petitioner
submits that aforesaid service rules are not
applicable to the petitioner's services,
inasmuch as, it is well settled that a person
who was appointed on compassionate
ground, his appointment is substantive in
nature and, therefore, petitioner could not
be terminated as a temporary employee.

4. Learned Additional Chief Standing
Counsel submits that in the letter of
appointment itself, it was mentioned that
petitioner's
appointment
is
purely
temporary which can be terminated without
any prior intimation. He further submits
that petitioner- Manoj Kumar has already
expired and, therefore, the writ petition has
rendered infructuous. Sri Srivastava, by
referring to counter affidavit, further
submits that petitioner- Manoj Kumar
absented himself from duty without any
prior information and despite service of
show cause notice upon him, he did not
respond and, hence, the order impugned
was passed.

5. Meeting the aforesaid submissions,
learned counsel for the petitioner submits
that operation of the impugned order was
stayed by this Court on 19.02.2001 and the
petitioner continued to work in the
department until death which occurred on
23.12.2020. He submits that the writ
petition was dismissed for want of
prosecution in the year 2018, and has been
restored in October, 2023 and because of
no knowledge of the order of dismissal,
either
to
the
petitioner
or
to
the
respondents, the services of the petitioner
Manoj Kumar were not disturbed till his
death. He further submits that after
petitioner's death, his widow, Smt. Manju
Lata, one of the substituted heirs/legal
representatives of the deceased petitioner,
made
her
claim
for
compassionate
appointment, however, Senior Treasury
Officer, Mainpuri, by passing order dated
07.06.2021, annexed to the substitution
application, has observed that on account of
pendency of present petition, the financial
1 All. Manoj Kumar Vs. Ziladhikari & Ors.
1197
condition of the claimant (Smt. Manju
Lata) cannot be examined.

6. Having heard learned counsel for
the respective parties, this Court is of the
considered opinion that merely because
the
nature
of
appointment
of
the
petitioner Manoj Kumar was described as
"temporary" in the letter of appointment,
the U.P. Recruitment of Dependants of
Government Servant Dying in Harness
Rules,
1974
being
statutory
Rules,
nowhere provide that the compassionate
appointment of an appointee is temporary
in nature.

7. Regarding nature of services of
compassionate appointee, a Division
Bench of this Court in the case of Ravi
Karan Singh vs. State of UP & ors; 1999
(3) UPLBEC 2263, by referring to earlier
decisions in the case of Budhhi Sagar
Dubey v. DOIS; (1993) 1 UPLBEC 197;
Gulab Yadav v. State of UP & ors;
(1991) 2 UPLBEC 995 and Dhirendra
Pratap Singh v. DIOS & ors; (1991) 1
UPLBEC
427,
has
held
that
the
appointment under dying-in-harness rules
is of permanent nature. Later on, another
Division Bench approved the decision in
the case of Ravi Karan Singh (supra)
while deciding Special Appeal No.348 of
2002 by judgment dated 16.07.2002 in
the case of Sanjai Kumar v. Deputy
Director General (NCC) Directorate,
U.P. Lucknow & ors.

8. For the aforesaid reasons, the
view taken by the respondents in the
order impugned terming the nature of
appointment
of
a
compassionate
appointee as temporary in nature, cannot
be approved and is held to be contrary to
law.

9. I n so far as stand taken in the
counter
affidavit
regarding
some
proceedings against the petitioner, the
Court is of the view that no such ground
has been taken in the order impugned
which has been passed only by relying
upon Rules which are not applicable. The
Apex Court in the case of Mohinder
Singh Gill & anr v. Chief Election
Commissioner, New Delhi & ors; AIR
1978 SC 851, has clearly laid down that
the validity of the order impugned can be
judged only on the basis of reasons
assigned therein and such reasons cannot
be supplemented by affidavits. Even
otherwise, if the department proceeded to
hold certain proceedings against Manoj
Kumar, it would be presumed that the
department was treating him as a
regularly appointed person and not a
temporary appointee.

10. In view of the above, the order
impugned dated 22.01.2000 terminating
the services of the petitioner- Manoj
Kumar cannot be sustained in law and is
hereby quashed.

11. The writ petition succeeds and is
allowed.

12. The concerned authorities are
directed to consider the claim of the
petitioner's widow Smt. Manju Lata for
compassionate appointment as per the
statutory
rules
and
after
analysing
financial condition of the family within a
period of three months from the date a
certified copy of this order is produced
before them. They shall also consider the
claim of the heirs of the deceased
petitioner for release of financial benefits
arising out of services of the deceased
petitioner within the same period of time.
----------
1198 INDIAN LAW REPORTS ALLAHABAD SERIES
(2024) 1 ILRA 1198
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 21.11.2023

BEFORE

THE HON'BLE MANISH MATHUR, J.

Writ-A No. 7273 of 2023

Prem Kumar Dubey ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Laxmi Kant Pathak, Jyotindra Prakash
Pathak

Counsel for the Respondents:
C.S.C.

Service Law - U.P.Government Servants
(Medical Care) Rules, 2011 - Rules 11 & 16 -
In
present
case,
rejection
of
petitioner's
reimbursement claim on ground that it is not
within time frame as indicated in Rules, 2011 is
contrary to judicial precedents, objection of
opposite parties rejected - CMO's letter verified
and
recommended
petitioner's
medical
reimbursement claim as per rules, said letter did
not mention any defect in format - Therefore, it
does not stand reason that such ground is being
taken for first time by opposite parties in counter
affidavit which has been filed - Since petitioner
submitted original bills and receipts, regarding
reimbursement of claims pertaining to expenses
incurred on treatment of his deceased wife, duly
verified
by
competent
authority,
his
reimbursement claim cannot be rejected on mere
technical ground of format - Thus, two grounds
taken by opposite parties to deny petitioner's
reimbursement claim are unsupported by rules or
precedent - Direction to competent authorities to
pay reimbursement amount to petitioner along
with interest @ 8% per annum from date of CMO's
verification till actual payment. (Para 20 to 24)

Writ petition allowed. (E-13)

List of Cases cited:
1. Chandrika Prasad Yadav Vs St. of Bihar & ors.
2004 (6) SCC 331, (Para 31)

2. Kailash Vs Nanhku & ors. 2005 (4) SCC 480

3. Consumer Education and Research Centre Vs
U.O.I. & ors. (1995) 3 SCC 42, (Paras 24, 25)

4. Kirloskar Brothers Ltd. Vs ESI Corporation
(1996) 2SCC 682, (Para 9)

5. St. of Punjab Vs Ram Lubhaya Bagga (1994)
4SCC 117

6. Chairman Railway Board Vs Chandrima Das
(2000) 2 SCC 465, (Para 32)

(Delivered by Hon'ble Manish Mathur, J.)

1. Heard learned counsel for the
petitioner and State counsel for opposite
parties.

2. Instant petition has been filed
seeking a direction to opposite parties for
payment of medical reimbursement to
petitioner amounting to Rs.3,04,935/- as
reimbursement in lieu of expenses incurred
by petitioner for medical treatment of his
wife, Late Smt. Durgawati Dwivedi.

3. It is submitted that petitioner's wife
was employed on the post of Senior
Assistant with the Principal, Government
Polytechnic, Pratapgarh and was suffering
from serious ailment due to which, she
required hospitalisation and treatment but
passed away on 24.09.2021. It is submitted
that after demise of his wife, petitioner
submitted medical claim amounting to
Rs.3,41,029/- as medical reimbursement on
16.03.2022. The claim for reimbursement
and bills annexed thereto were thereafter
forwarded by opposite party no.4 on
28.03.2022 to the Chief Medical Officer,
Pratapgarh for scrutiny and after scrutiny,
the Chief Medical Officer verified the