# Mohd. Haidar v. State of U.P. & Anr

- **Citation:** (2020) 12 ILRA 671
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-11
- **Case number:** Writ -A No. 8797 of 2020
- **Bench:** Pankaj Mithal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mohd-haidar-v-state-of-u-p-anr-45492
- **Pages:** 4

## Headnote

Law
-
Compassionate
Appointment - Uttar Pradesh Recruitment
of Dependants of Government Servant
Dying in Harness Rules, 1974: Rule 5 -
There is no statutory requirement under law for
seeking permission of Basic Shiksha Adhikari for
the purpose of re-marriage by an employee,
who has been appointed on compassionate
basis. The petitioner has unnecessarily invoked
the writ jurisdiction of this Court. (Para 6, 7)

Right to marry with person of choice is an
integral
part
of
Article
21
of
the
Constitution of India - Rule 5 only provides
that the person employed on compassionate
basis shall maintain other members of the family
of the deceased government servant and in case
he neglects or refuses to maintain them, his
services may be terminated. Merely because
petitioner has been appointed on compassionate
basis, he cannot be forced to sacrifice his/her
fundamental right of remarriage, after the death
672 INDIAN LAW REPORTS ALLAHABAD SERIES
of the earlier spouse. A person would not earn
any disqualification on this score and warrant
any disciplinary proceedings. (Para 5)

Writ Petition dismissed. (E-4)

Precedent followed:

## Text

12 All. Mohd. Haidar Vs. State of U.P. & Anr.
671
superannuation. They shall be entitled to
receive the pension as if they have retired
from the regular establishment and the
services rendered by them right from the
day
they
entered
the
work-charged
establishment
shall
be
counted
as
qualifying service for purpose of pension.

36. In view of reading down Rule 3(8)
of the U.P. Retirement Benefits Rules,
1961, we hold that services rendered in the
work-charged
establishment
shall
be
treated as qualifying service under the
aforesaid rule for grant of pension. The
arrears of pension shall be confined to
three years only before the date of the
order. Let the admissible benefits be paid
accordingly
within
three
months.
Resultantly, the appeals filed by the
employees are allowed and filed by the
State are dismissed."

22. In view of the aforesaid
discussions, in my opinion, the G.O. dated
13.08.2015 as well as decisions of the Apex
Court, the petitioner is entitled to get
regularization of his service from the date
of issuance of G.O. dated 13.08.2015
wherein the cut-off-date for regularization
is mentioned as 31.01.1996.

23. In view thereof, the writ petition
succeeds and the same is allowed. Since the
petitioner has completed 20 years of his service
and comes under the G.O. dated 13.08.2015,
this Court directed that the service of the
petitioner be regularized from the date i.e.
13.08.2015 and the consequential benefits as
well as arrears of pay also to be paid to the
petitioner within a period of two months from
today. The petitioner is also entitled to get
seniority and pension, if he has been retired
from his service.

24. It is made clear that petitioner
shall not be entitled to differences of
arrears
prior
to
the
period
of
his
regularization. The petitioner's services
would be counted as qualified service for
grant of retiral benefits including pension.

25. No order as to cost.
----------
(2020)12ILR A671
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2020

BEFORE

THE HON'BLE PANKAJ MITHAL, J.

Writ -A No. 8797 of 2020

Mohd. Haidar ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Surendra Prasad Mishra

Counsel for the Respondents:
C.S.C., Sri Daya Ram Yadav

A.
Service
Law
-
Compassionate
Appointment - Uttar Pradesh Recruitment
of Dependants of Government Servant
Dying in Harness Rules, 1974: Rule 5 -
There is no statutory requirement under law for
seeking permission of Basic Shiksha Adhikari for
the purpose of re-marriage by an employee,
who has been appointed on compassionate
basis. The petitioner has unnecessarily invoked
the writ jurisdiction of this Court. (Para 6, 7)

Right to marry with person of choice is an
integral
part
of
Article
21
of
the
Constitution of India - Rule 5 only provides
that the person employed on compassionate
basis shall maintain other members of the family
of the deceased government servant and in case
he neglects or refuses to maintain them, his
services may be terminated. Merely because
petitioner has been appointed on compassionate
basis, he cannot be forced to sacrifice his/her
fundamental right of remarriage, after the death
672 INDIAN LAW REPORTS ALLAHABAD SERIES
of the earlier spouse. A person would not earn
any disqualification on this score and warrant
any disciplinary proceedings. (Para 5)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Smt. Santoshi Vs St. of U.P. & 2 ors., Writ-A No.
834 OF 2020, decided on 21.01.2020 (Para 5)

(Delivered by Hon'ble Pankaj Mithal, J.)

1. Heard Sri Surendra Prasad Mishra,
learned Counsel for the petitioner and
learned
Standing
Counsel
for
Staterespondent No.1.

2. Briefly stated facts of the present
case are that the petitioner was appointed
on compassionate basis on the death of his
wife. The petitioner now intends to marry
the younger sister of his wife. Therefore, he
seeks permission from Basic Shiksha
Adhikari where he is employed to re-marry.

3. Learned Standing Counsel submits
that there is no requirement under law for
getting any permission for re-marriage by
an employee. The petitioner appears to
have applied for permission to re-marry in
view of Rule 5 of the 1974 Rules.

4. Rule 5 of the Uttar Pradesh
Recruitment of Dependants of Government
Servant Dying in Harness Rules, 1974
(hereinafter referred to as 'the Rules, 1974')
provides as under:-

"5. Recruitment of a member of the
family of the deceased - (1) In case a
Government servant dies in harness after
the commencement of these rules, and the
spouse of the deceased Government servant
is not already employed under the Central
government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purpose, be given a suitable employment in
Government Service on a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules if such person -

(i)
fulfils
the
educational
qualifications prescribed for the post:

Provided that in case appointment is
to be made on a post for which typewriting
has been prescribed as an essential
qualification and the dependent of the
deceased Government servant does not
possess
the
required
proficiency
in
typewriting, he shall be appointed subject
to the condition that he would acquire the
requisite speed of 25 words per minute in
typewriting well within one year and if he
fails to do so, his general annual increment
shall be withheld and a further period of
one year shall be granted to him to acquire
the requisite speed in typewriting and if in
the extended period also he again fails to
acquire the requisite speed in typewriting,
his services shall be dispensed with.

Provided
further
that
in
case
appointment is to be made on a post for
which the knowledge of computer operation
and typewriting has been prescribed as an
essential qualification and the dependent of
the deceased Government servant does not
possess
the
required
proficiency
in
computer operation and typewriting, he
shall be appointed subject to the condition
that he would acquire the 'CCC' certificate
in computer operation awarded by the
DOEACC
Society
or
a
certificate
equivalent thereto from an Institution
12 All. Mohd. Haidar Vs. State of U.P. & Anr.
673
recognized by the Government together
with the required speed of 25 words per
minute in typewriting well within one year
and, if he fails to do so, his general annual
increment shall be withheld and a further
period of one year shall be granted to him
to acquire the required certificate in
computer operation and the required speed
in typewriting and if in the extended period
also he again fails to acquire the required
certificate in computer operation and the
required speed in typewriting, his services
shall be dispensed with."

(ii)
is
otherwise
qualified
for
Government service; and

(iii)
makes
the
application
for
employment within five years from the date
of the death of the Government servant:

Provided
that
where
the
State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, if may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner:

Provided further that for the purpose of the
aforesaid proviso, the person concerned shall
explain the reasons and give proper justification
in writing regarding the delay caused in making
the application for employment after the expiry
of the time limit fixed for making the application
for employment along with the necessary
documents/proof in support of such delay and
the Government shall, after taking into
consideration all the facts leading to such delay,
take the appropriate decision."

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death.

(3) Every appointment made under
sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members
of the family of deceased Government
servant, who were dependent on the
deceased Government servant immediately
before his death and are unable to
maintain themselves.

(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time."

5. The aforesaid Rule nowhere stipulates
that any permission is required by a person
employed on compassionate basis for re-marriage.
It only provides that the person employed on
compassionate
basis
shall
maintain
other
members of the family of the deceased
government servant. It also provides that in case
he neglects or refuses to maintain them, his
services services may be terminated. This does not
mean that there is any rider on the right of the
employee to re-marry. This is what has also been
laid down by this Court in the case of Smt.
Santoshi v. State of U.P. and 2 others, Writ-A No.
834 of 2020, decided on 21.1.2020. It has been
observed that right to marry with person of choice
is an integral part of Article 21 of the Constitution
of India. Merely because petitioner has been
appointed on compassionate basis, he cannot be
forced to sacrifice his/her fundamental right of remarriage, after the death of the earlier spouse. A
person would not earn any disqualification on this
score and warrant any disciplinary proceedings.

6. Thus, there is no provision under
law which requires any person to seek
permission from the employer for remarriage.

7. In view of the aforesaid facts and
circumstances, as there is no statutory
674 INDIAN LAW REPORTS ALLAHABAD SERIES
requirement
under
law
for
seeking
permission of Basic Shiksha Adhikari for
the purpose of re-marriage by an employee,
who has been appointed on compassionate
basis, I am of the opinion that the petitioner
has
unnecessarily
invoked
the
writ
jurisdiction of this Court.

8.

The
petition
as
such
is
misconceived and is dismissed.
----------
(2020)12ILR A674
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 10.11.2020

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 9511 of 2020

Anil Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri M.D. Singh Shekhar, Sri Ram Dayal Tiwari,
Sri Vaibhav Goswami

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Government Servant
(Discipline and Appeal) Rules, 1999 - Rule
11, 12, 13-Disciplinary Enquiry - Alternative
remedy - Alternative remedy is not a bar to
entertain a writ petition where there has
been violation of principles of natural
justice. (Para 25)

An
appeal,
generally
speaking,
is
a
rehearing by a superior authority/Court
on both law and fact. In the instant case, the
petitioner has not challenged the enquiry report
in his objection against the second show-cause
notice on the ground of violation of the principle
of natural justice. Since petitioner is raising the
plea of violation of principles of natural justice
for the first time in the writ petition, and the
question whether the Enquiry Officer had fixed
any date, time and place for conducting the
enquiry is essentially a question of fact, this
issue can very well be raised by the petitioner in
appeal, which can be considered by the
appellate authority under Rule 12 of Rules, 1999
as it is empowered to consider all factual aspect
of the matter. (Para 26, 27)

It is apparent from the reading of Rules
11, 12 and 13 of Rules, 1999 that it
provides
a
complete
mechanism
to
disseminate justice if any injustice has
been caused by the disciplinary authority.
(Para 28)

Writ Petition dismissed. (E-4)

Precedent followed:

1. Nivedita Sharma Vs Cellular Operators Assc.
of India & ors., (2011) 14 SCC 337 (Para 20)

2. Thansingh Nathmal & ors. Vs Superintendent of
Taxes, Dhubri & ors. s, AIR 1964 SC 1419 (Para 21)

(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri M.D. Singh Shekhar,
learned Senior Counsel assisted by Sri Ram
Dayal Tiwari, learned counsel for the
petitioner and learned Standing Counsel for
respondent nos.1 to 4.

2. The brief facts of the case are that
petitioner while working as Lekhpal was
suspended by Up-Ziladhikari, Bansgaon,
Gorakhpur by order dated 06.10.2018 in
contemplation of enquiry. The charge sheet
was issued on 24.01.2019 against the
petitioner. In the charge sheet, four charges
were levelled against the petitioner.

3. The main charge against the
petitioner was that he made wrongful
entries in respect of certain gatas in fasli
year 1424-1429F. Besides this, the other
charge against the petitioner was for