# Mudresh Kumar & Ors v. State of U.P.& Ors

- **Citation:** (2020) 6 ILRA 843
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-07-23
- **Case number:** Court in Special Appeal (D) No.863 of 2015
- **Bench:** Surya Prakash Kesarwani
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mudresh-kumar-ors-v-state-of-u-p-ors-45808
- **Pages:** 6

## Headnote

A. Education/Service Law - Benefit of
Old Pension Scheme - The Uttar Pradesh
Subordinate
Educational
(Trained
Graduate Grade) Service Rules, 1983:
Rules 3(g), 3(h), 3(i) 4, 15 - Petitioners
are not entitled for the benefit of the old
pension scheme which was not in
existence
at
the
time
of
their
appointments.

Petitioners, in the present writ petition,
claim the benefit of Old Pension Scheme
which was abolished in March 2005. Under
the Rules 1983, the petitioners No. 1 to 5
became "Member of Service" on their
substantive appointments on the posts in
the
cadre
of
service
on
3.10.2006,
07.01.2006, 29.10.2005, 10.03.2006 and
03.10.2005 respectively (i.e. on dates when
their appointment letters were issued),
while the pension scheme was abolished
much earlier in the month of March 2005.
Therefore, the petitioners are not entitled
for the benefit of the old pension scheme
which was not in existence at the time of
their appointments. (Para 3, 11)

B. Conditions to become "Member of
Service" - In order to become "Member of
Service", a candidate must satisfy four
conditions, namely, (i) the appointment must
be in a substantive capacity; (ii) to a post in
service i.e. in a substantive vacancy; (iii) made
according to rules; (iv) within the quota
prescribed for the source. An order of
appointment
will
be
effective
only
on
communication.
Although
origin
of
Government Service is contractual but on
appointment on a post or office, the person so
appointed acquires a 'Status', then his rights
and obligations are determined by statute or
statutory rules which may be framed and may
be altered unilaterally by the Government.
(Para 12)

Writ Petition dismissed. (E-4)
Precedent followed:

## Text

6 All. Mudresh Kumar & Ors. Vs. State of U.P. & Ors. 843
Hon'ble Apex Court vide judgment and
order dated 23.07.2019.

9. Having heard learned counsel for
the petitioner, learned Standing Counsel
for the State and perused the record. It is
not disputed that the petitioner is the
married daughter of late Krishna Kumar
Saxena,
working
on
the
post
of
Administrative Officer in the office of
P.W.D. and after the death of her father,
the petitioner applied for compassionate
appointment and she is living with her
widow mother to look after her and there
is no source of her livlihood and no other
family members made any objection on
petitioner's
appointment
on
compassionate ground in place of late
father.

10. It is also not out of place to mention
here that the only objection taken by the
respondents is that the petitioner being
married daughter is not covered under the
definition of family under Rule 2(c) of the
U.P.
Recruitment
of
Dependent
of
Government
Servant
Dying-in-Harness
Rules, 1974, as such petitioner is not entitled
for reliefs sought in the writ petition. This
Court is not satisfied with the objection raised
by the respondents, whereas this controversy
has already been attained finality in Special
Appeal (D) No.863 of 2015 (Neha Srivastava
Vs. State of U.P. and another) and this Court
has held that exclusion of married daughters
from the ambit of the expression family in
Rule 2(c) of the U.P. Recruitment of
Dependent of Government Servant Dying-inHarness
Rules,
1974
is
illegal
and
unconstitutional being violative of Articles 14
and 15 of the Constitution of India and further
held that the married daughter is entitled to be
considered for compassionate appointment. It
is relevant to mention here that the Hon'ble
Apex Court also dismissed the Special Leave
to Appeal (C) No.22646 of 2016 vide
judgment and order dated 23.07.2019
confirming the judgment passed in Special
Appeal (D) No.863 of 2015 dated 23.12.2015
(Neha Srivastava Vs. State of U.P. and
another).

11. In view of the aforesaid discussions
and considering the judgement passed by this
Court in Special Appeal (D) No.863 of 2015
dated 23.12.2015 (Neha Srivastava Vs. State
of U.P. and another) and the judgment passed
by the Hon'ble Apex Court in Special Leave
to Appeal ( C) No.22646 of 2016, the present
writ petition is allowed and the impugned
order dated 31.01.2020 is quashed. The
Superintending Engineer, Budaun/ Pilibhit
Zone, P.W.D. Bareilly, respondent No.4 is
directed to consider and decide the claim of
the petitioner in the light of the observations
made above and the judgment passed by this
Court expeditiously, preferably within a
period of six weeks from the date of
production of a certified copy of this order
before him and the respondent No.4 may also
communicate the decision to the petitioner
forthwith.

12. No order as to cost.
----------

(2020)06ILR A843
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.03.2020

BEFORE
THE HON'BLE SURYA PRAKASH
KESARWANI, J.

WRIT A No. 3751 of 2020

Mudresh Kumar & Ors. ...Petitioners
Versus
State of U.P.& Ors. ...Respondents

Counsel for the Petitioners:
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Sri Vinod Kumar Singh, Sri Om Prakash
Gupta

Counsel for the Respondents:
C.S.C.

A. Education/Service Law - Benefit of
Old Pension Scheme - The Uttar Pradesh
Subordinate
Educational
(Trained
Graduate Grade) Service Rules, 1983:
Rules 3(g), 3(h), 3(i) 4, 15 - Petitioners
are not entitled for the benefit of the old
pension scheme which was not in
existence
at
the
time
of
their
appointments.

Petitioners, in the present writ petition,
claim the benefit of Old Pension Scheme
which was abolished in March 2005. Under
the Rules 1983, the petitioners No. 1 to 5
became "Member of Service" on their
substantive appointments on the posts in
the
cadre
of
service
on
3.10.2006,
07.01.2006, 29.10.2005, 10.03.2006 and
03.10.2005 respectively (i.e. on dates when
their appointment letters were issued),
while the pension scheme was abolished
much earlier in the month of March 2005.
Therefore, the petitioners are not entitled
for the benefit of the old pension scheme
which was not in existence at the time of
their appointments. (Para 3, 11)

B. Conditions to become "Member of
Service" - In order to become "Member of
Service", a candidate must satisfy four
conditions, namely, (i) the appointment must
be in a substantive capacity; (ii) to a post in
service i.e. in a substantive vacancy; (iii) made
according to rules; (iv) within the quota
prescribed for the source. An order of
appointment
will
be
effective
only
on
communication.
Although
origin
of
Government Service is contractual but on
appointment on a post or office, the person so
appointed acquires a 'Status', then his rights
and obligations are determined by statute or
statutory rules which may be framed and may
be altered unilaterally by the Government.
(Para 12)

Writ Petition dismissed. (E-4)
Precedent followed:

1. State of Rajasthan Vs Jagdish Narain
Chaturvedi, (2009) 12 SCC 49 (Para 18) (Para
12)

2. Tagin Litin Vs St. of Arunachal Pradesh,
(1996) 5 SCC 83 (Para 12)

3. Roshan Lal Tandon Vs U.O.I., AIR 1967 SC
1889 at 1894 (Para 12)

4. U.O.I. Vs Tulsi Ram Patel, AIR 1985 SC
1416 at 1437 (Para 12)

Precedent distinguished:

1. Mahesh Narayan and others Vs St. of U.P. .
& ors., 2020 (4) ADJ 172; 2020 (2) ALJ 518
(Para 3, 4, 7, 8)

(Delivered by Hon'ble Surya Prakash
Kesarwani, J.)

1. Heard Sri Vinod Kumar Singh,
learned counsel for the petitioners,
learned
standing
counsel
for
the
respondents.

2. This writ petition has been filed
praying for the following relief:-

"I . a writ, order or direction, in
the nature of mandamus, directing the
respondent no.2 to extend the benefit of
Old Pension Scheme to the petitioners in
terms of the judgment and order dated
19.12.2019 passed in Writ Petition
No.55606 of 2008 (Mahesh Narayan and
others Vs. State of U.P. and others).

II. a writ, order or direction, in
the nature of mandamus, directing the
respondent no.2 to consider the decide
the representation of the petitioners dated
14.02.2020."

3. Briefly stated facts of the present
case are that Advertisement No.1/2004
6 All. Mudresh Kumar & Ors. Vs. State of U.P. & Ors. 845
was issued inviting applications for
recruitment
of
Trained
Graduate
Teachers in different subjects. Learned
counsel for the petitioner states that the
interview of the petitioners depending
upon the subjects were held between July
to September 2005 and final results were
declared between September 2005 to
February 2006 depending upon the
subjects. However, particulars regarding
date of interview and dates of final result
have neither been disclosed in the writ
petition nor the learned counsel for the
petitioner could make a statement in this
regard. The dates of appointment letters
given in paragraphs 7 to 11 of the writ
petition and copies of appointment letters
filed as Annexure 2 to the writ petition
shows that immediately after declaration
of results final select list was declared and
allocation of colleges were made by the
competent
authorities.
Thereafter,
Managers of the respective colleges
issued
appointment
letters
to
the
petitioners. From perusal of copies of
appointment letters collectively filed by
the petitioners as Annexure 2 to the writ
petition, it appears that appointment
letters were issued by the concerned
colleges to the petitioner nos. 1 to 5 on
03.10.2006,
07.01.2006,
29.10.2005,
10.03.2006 and 03.10.2005, respectively.
Thus, undisputedly, the final select list
was declared and the petitioners were
appointed much after the Old Pension
Scheme was abolished in the month of
March 2005. The petitioners have now
filed the present writ petition claiming
benefit of Old Pension Scheme on the
basis of judgment of this court dated
19.12.2019 in in WRIT - A No. - 55606
of 2008 (Mahesh Narayan and others
Vs. State of U.P. and others).

Submissions

4. Learned counsel for the petitioner
submits that in view of judgment in the
case of Mahesh Narayan and others
(supra) the petitioners are entitled for the
benefit of old Pension Scheme.

5. Learned standing counsel submits
that the petitioners are not entitled for the
benefit of Old Pension Scheme inasmuch
as they were appointed without any delay
and much after the Old Pension Scheme
was abolished.

Discussion and Findings

6. I have carefully considered the
submissions of learned counsels for the
parties.

7. The sole basis of filing the
present writ petition is the judgment of
this Court in the case of Mahesh
Narayan and others (supra). The
relevant portion of the judgment in the
case of Mahesh Narayan and others
(supra), is reproduced below:-

"From the perusal of judgments
of Satyesh Kumar Mishra (Supra) and
Firangi Prasad (Supra), there is no doubt
on the point that similar dispute was
before this Court in the matter of Satyesh
Kumar Mishra (Supra), which was
dismissed by this Court against which
Special Appeal Defective No. 480 of 2016
is pending. It is also not disputed that
legal issue involved in the matter of
Satyesh Kumar Mishra (Supra) was also
before Division Bench of this Court in the
matter of Firangi Prasad (Supra) where
the Court has clearly held that on the
fault of appointing authority in issuing
appointment letter, petitioners cannot be
put any type of disadvantage. It appears
that at the time of deciding the matter of
846 INDIAN LAW REPORTS ALLAHABAD SERIES
Satyesh
Kumar
Mishra
(Supra),
judgement of Firangi Prasad (Supra) was
not placed before this Court, therefore,
without considering the same, decision
was given in the matter of Satyesh Kumar
Mishra (Supra). Under such facts and
circumstances, judgement of Satyesh
Kumar Mishra (Supra) is per incuriam
and cannot be treated as precedent in the
present case and will not come in the
rescue of respondents.

The controversy and question of
law involved in the present case is
squarely covered with the judgement of
Firangi Prasad (Supra) as well as other
judgments relied upon by learned counsel
for the petitioners and Courts have taken
consistant view that respondents cannot
by their inaction deprive a candidate to
his legitimate right.

So far as facts of the case are
concerned, there is no dispute on the
point that pursuant to advertisement No.
A-3/E-1/2000, advertisement was issued
in news paper on 22.12.2000 and as per
order of this Court dated 29.12.2001
passed in Special Appeal No. 485 (S/B) of
2001 (supra), there was no legal
impediment in completition of recruitment
process, but dut to inaction on the part
of respondents, it was completed only
after dismissal of writ petition on
05.07.2005. Final selected list of selected
candidate
was
published
in
daily
newspaper
'Dainik
Jagran'
dated
12.03.2006 and thereafter appointment
letters were issued. It is also not disputed
that in between again in subsequent
advertisement
No.
A-3/E-1/2002,
recruitment
was
completed
and
candidates
had
been
granted
appointment prior to 01.04.2005 and
getting the benefit of 'Old Pension
Scheme'.

Therefore, considering the facts
and circumstances of the case and legal
position discussed herein above, writ
petition is partly allowed and petitioners
are
excluded
from
the
effect
and
operation
of
Notification
dated
28.03.2005 and 07.04.2005 as it is in
violation of Article 14 of Constitution of
India as well as law laid down by the
Courts.

Respondents are directed to
include
the
petitioners
under
'Old
Pension Scheme' as provided in Rules,
1961 before amendment and be given all
other consequential benefits."

8. Thus, in the case of Mahesh
Narayan and others (supra) the facts
were that Advertisement No. A-3/E1/2000 was issued on 22.12.2000 for
recruitment on the post of Junior Engineer
(Civil) in irrigation department. As per
order dated 29.12.2001 in Special Appeal
No.485 (S/B) of 2001 there was no legal
impediment in completion of recruitment
process but due to inaction on the part of
the authorities it was completed only after
dismissal of writ petition No.57 of 2005
and the list of finally selected candidate
was
published
in
news
paper
on
12.3.2006 and thereafter appointment
letters for the posts of Junior Engineer
(Civil) Irrigation were issued. It has also
been observed by this Court in the
aforesaid case of Mahesh Narayan and
others (supra) that during pendency of
selection
process
a
subsequent
advertisement
No.A-3/E-1/2002
was
issued and recruitment was completed
and appointment letters were issued prior
to 1.4.2005 and the candidates so
appointed
under
the
subsequent
advertisement were getting benefit of
Old Pension Scheme. On these facts a
coordinate Bench in the case of Mahesh
6 All. Mudresh Kumar & Ors. Vs. State of U.P. & Ors. 847
Narayan and others (supra) granted
benefit of Old Pension Scheme to the
petitioners of that writ petition holding
that the action of the State in not giving
benefit is violative of Article 14 of the
Constitution of India.

9. Facts of the present case are
entirely different. Neither there was
any inaction on the part of the U.P.
Secondary
Education
Services
Selection Board or any authority of the
State Government nor there was any
delay in conducting the examination or
declaring the result or completing the
selection process. The selection process
initiated
by
advertisement
dated
30.9.2004 was expeditiously completed
and appointment letters were issued to
the petitioners as per admitted facts
noted in Para 3 above. Therefore, the
judgment in the case of Mahesh Narain
and others (supra) does not support the
case of the petitioners.

10. Undisputedly the advertisement
in question for recruitment on the post of
Trained Graduate Teachers in Non
Government Aided High Schools and
Inter Colleges was issued under the
provisions
of
The
Uttar
Pradesh
Subordinate
Educational
(Trained
Graduate Grade) Service Rules, 1983
(hereinafter referred to as "The Rules
1983"). The petitioners participated in the
recruitment process and were appointed
under the aforesaid Rules 1983. Rule 4
provides for cadres of service. Rule 15
provides
the
procedure
of
direct
recruitment. Rule 18 provides for
appointment.
Rule
3(g)
defines
"Member of the Service". It provides
"Member of the Service" means a person
substantively appointed under these
rules or the rules or orders in force prior
to the commencement of these rules to a
post in the cadre of service. Rule 3(h)
defines the word "service" to mean the
Uttar Pradesh Subordinate Educational
(Trained Graduate Grade) Service. Rule
3(i) defines the word "Substantive
appointment" to mean an appointment
not being an adhoc appointment, on a
post in the cadre of service, made after
selection in accordance with the rules
and if there are no rules, in accordance
with the procedure prescribed for the time
being executive instructions issued by the
Government.

11. Thus, under the Rules 1983, the
petitioners No.1 to 5 became "Member of
Service"
on
their
substantive
appointments on the posts in the cadre of
service
on
03.10.2006,
07.01.2006,
29.10.2005, 10.03.2006 and 03.10.2005
respectively, while the pension scheme
was abolished much earlier in the month
of March 2005. Therefore, the petitioners
are not entitled for the benefit of the old
pension scheme which was not in
existence
at
the
time
of
their
appointments.

12. The view taken be me above, is
also supported by the law laid by Hon'ble
Supreme Court in State of Rajasthan Vs.
Jagdish Narain Chaturvedi (2009) 12
SCC 49 (Para 18) in which it has been
held that in order to become "Member
of Service", a candidate must satisfy four
conditions, namely, (i) the appointment
must be in a substantive capacity; (ii) to a
post in service i.e. in a substantive
vacancy; (iii) made according to rules;
(iv) within the quota prescribed for the
source. An order of appointment will be
effective only on communication vide
Tagin Litin Vs. State of Arunachal
Pradesh (1996)5 SCC 83. Although
848 INDIAN LAW REPORTS ALLAHABAD SERIES
origin
of
Government
Service
is
contractual but on appointment on a post
or office, the person so appointed
acquires a 'Status'. Then his rights and
obligations are determined by statute or
statutory rules which may be framed and
may be altered unilaterally by the
Government. Similar view has been taken
by Hon'ble Supreme Court in Roshanlal
Tandon Vs. Union of India AIR 1967
SC 1889 at 1894 approved in Union of
India Vs. Tulsi Ram Patel AIR 1985 SC
1416 at 1437. Thus petitioners can not get
benefit of old pension scheme which was
abolished
much
prior
to
their
appointments. The Old Pension Scheme
was not part of the rules governing
conditions of service of the petitioners.

13. For all the reasons aforestated, I
do not find any merit in this writ petition.
Consequently,
the
writ
petition
is
dismissed. However, there shall be no
order as to costs.
----------
(2020)06ILR A848
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.05.2020

BEFORE
THE HON'BLE PRAKASH PADIA, J.

WRIT A No. 4070 of 2020

Ashotosh Kumar Srivastava & Ors.
 ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Seemant Singh, Sri Pankaj Kumar

Counsel for the Respondents:
C.S.C., Sri P.D.Tripathi

A. Education/Service Law - Recruitment
- Each candidate necessarily must bear
the consequences of his failure to fill up
the application form correctly. (Para 20)
The error committed by the candidates cannot
be said to be human in nature. The petitioners
should have read the instructions that were
issued time and again and should have
correctly filled the entries relating to the marks
obtained
by
them
in
their
previous
examinations. The contention that this was an
error committed by the Computer Operator
cannot simply be accepted. If the Courts were
to accept such a plea of the petitioners, then
this would result in a situation where the
petitioners would get the benefit of a wrong if
the wrong claim went unnoticed and if noticed
the petitioners could always turn around and
claim that this was a result of a human error.
The error/errors committed by the petitioners
are neither minor nor are human error/errors.
(Para 11, 20)

Writ petition dismissed. (E-4)

Precedent followed:

1.
Km.
Richa
Pandey
Vs
Examination
Regulatory Authority & anr., Special Appeal
Defective No. 117 of 2014 decided on
18.02.2014 (Para 12)

2. Ram Manohar Yadav Vs St. of U.P. and 3
ors., Special Appeal No. 834 of 2013 decided
on 30.05.2013 (Para 13)

3. Arti Verma Vs St.of U.P. & 2 ors., (2014)
ILR 1 All 145; 2014 (104) ALR 154 (Para 14)

4. Kanchan Bala & 172 ors. Vs St. of U.P. & 4
ors., 2018 (4) ADJ 264; 2018 (2) ALJ 689
(Para 15)

5. Jai Karan Singh & 52 ors Vs St. of U.P. & 4
ors., Special Appeal No. 90 of 2018 (Para 16,
19)

6. Karnataka Public Service Commission & ors.
Vs B.M. Vijaya Shankar & ors., AIR 1992 SC
952 (Para 17)

Precedent distinguished:

1. Satyendra Kumar Shukla Vs St. of U.P. &
ors., Writ Petition No. 21117 of 2018 (Para 7)