# Nabeel Husain v. State of U.P. & Ors - **Citation:** (2022) 12 ILRA 454 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2022-11-22 - **Case number:** Special Appeal Defective No. 558 of 2022 - **Bench:** Manoj Misra, Vikas Budhwar - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nabeel-husain-v-state-of-u-p-ors-47896 - **Pages:** 4 ## Headnote Law - Compassionate Appointment - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 - Rule 5(1) - U.P. Basic Education Act, 1972 - Sections 3 & 13 - Rule 5(1) of 1974 Rules indicates that the claim for compassionate appointment is not maintainable where the spouse of the deceased government servant is already employed under the Central Government or a St. Government or a Corporation owned or controlled by the Central Government or a St. Government. (Para 11) In the instant case, there is no dispute that the spouse of the deceased employee, namely Tabassum Khan, is employed as Head-Mistress of a primary institution under the Board of Basic Education which is established by the St. Government u/s 3 of the U.P. Basic Education Act, 1972 and is under the control of the St. Government as per section 13 of the 1972 Act. (Para 12) The submission that Tabassum Khan is appellant's step mother and he would get no benefit of his step mother's employment is not 12 All. Nabeel Husain Vs. State of U.P. & Ors. 455 acceptable because compassionate appointment cannot be claimed as of right. It can be provided only if the policy or the rules governing such appointment permits. As per Rule 5(1), once it is not in dispute, that Tabassum Khan, spouse of the deceased employee was under employment, the claim for compassionate appointment was not sustainable. Consequently, the claim of the petitioner for compassionate appointment was rightly rejected and the learned Single Judge was justified in dismissing the writ petition. (Para 13, 14) Special appeal dismissed. (E-4) Present special appeal is against the judgment and order dated 26.09.2022, passed by learned Single Judge in Writ A No. 15313 of 2022. whereby the petition of the petitioner seeking quashing of the order dated 23.05.2022 rejecting his claim for compassionate appointment, has been dismissed. ## Text 454 INDIAN LAW REPORTS ALLAHABAD SERIES recognition for the elections that they claim to have held on 31.08.2020 and recognized on 01.10.2020. The permission for the elections that was granted on 14.08.2020 and its later recognition on 01.10.2020 in the absence of the petitioner-respondents and without notice to them would not imbue those elections with the imprimatur of validity, merely because the appellant has stealthily approached the District Inspector of Schools and sought permission to hold elections. The elections held by them, for that reason alone, would not become infallible. This is not to say that the elections held by the appellant are unlawful in any manner. This is a question which the Joint Director of Education has to go into, sitting in the Regional Level Committee, exercising power under Section 16-A(7) of the Act read with the Government Order dated 20.10.2008. He would be required to decide the issue on the basis of evidence placed before him by parties regarding the validity of their respective elections claimed. In any eventuality, the Joint Director of Education, or for that matter, the Regional Level Committee cannot abdicate their obligations under the Statute to summarily determine the dispute with regard to the management of an institution governed by the Act. They are required to decide, albeit summarily, the validity of the elections rivally claimed by the appellant and the petitioner-respondents, on the basis of which, recognition would follow, subject, of course, to the determination of a Court of competent jurisdiction. 16. In the opinion of this Court, there is no error in the judgment passed by the learned Single Judge. This appeal fails and is dismissed. There shall be no order as to costs. ---------- (2022) 12 ILRA 454 APPELLATE JURISDICTION CIVIL SIDE DATED: ALLAHABAD 22.11.2022 BEFORE THE HON'BLE MANOJ MISRA, J. THE HON'BLE VIKAS BUDHWAR, J. Special Appeal Defective No. 558 of 2022 Nabeel Husain ...Appellant Versus State of U.P. & Ors. ...Respondents Counsel for the Appellant: Sri Shiv Bhushan Singh, Sri Mahendra Kumar Yadav Counsel for the Respondents: C.S.C. A. Service Law - Compassionate Appointment - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 - Rule 5(1) - U.P. Basic Education Act, 1972 - Sections 3 & 13 - Rule 5(1) of 1974 Rules indicates that the claim for compassionate appointment is not maintainable where the spouse of the deceased government servant is already employed under the Central Government or a St. Government or a Corporation owned or controlled by the Central Government or a St. Government. (Para 11) In the instant case, there is no dispute that the spouse of the deceased employee, namely Tabassum Khan, is employed as Head-Mistress of a primary institution under the Board of Basic Education which is established by the St. Government u/s 3 of the U.P. Basic Education Act, 1972 and is under the control of the St. Government as per section 13 of the 1972 Act. (Para 12) The submission that Tabassum Khan is appellant's step mother and he would get no benefit of his step mother's employment is not 12 All. Nabeel Husain Vs. State of U.P. & Ors. 455 acceptable because compassionate appointment cannot be claimed as of right. It can be provided only if the policy or the rules governing such appointment permits. As per Rule 5(1), once it is not in dispute, that Tabassum Khan, spouse of the deceased employee was under employment, the claim for compassionate appointment was not sustainable. Consequently, the claim of the petitioner for compassionate appointment was rightly rejected and the learned Single Judge was justified in dismissing the writ petition. (Para 13, 14) Special appeal dismissed. (E-4) Present special appeal is against the judgment and order dated 26.09.2022, passed by learned Single Judge in Writ A No. 15313 of 2022. whereby the petition of the petitioner seeking quashing of the order dated 23.05.2022 rejecting his claim for compassionate appointment, has been dismissed. (Delivered by Hon'ble Manoj Misra, J. & Hon'ble Vikas Budhwar, J.) 1. Heard counsel for the appellant and learned Standing Counsel for the respondents. In Re: Delay Condonation Application No. 01 of 2022 2. By this Delay Condonation Application which is supported by an Affidavit, the appellant seeks condonation of about 20 days' delay in filing the Appeal against the judgement and order dated 26.09.2022 passed by learned Single Judge in Writ A No. 15313 of 2022. 3. Considering the explanation offered in the Affidavit filed in support of Delay Condonation Application, the delay in filing the appeal is condoned. 4. The Delay Condonation Application is allowed. 5. Office to assign a regular number to the appeal. In Re: Appeal 6. This intra court appeal is against the judgement and order of learned Single Judge passed on 26.09.2022 in Writ A No. 15313 of 2022 whereby the Writ Petition of the petitioner seeking quashing of the order dated 23.05.2022 rejecting his claim for compassionate appointment, has been dismissed. 7. The undisputed facts giving rise to the instant Appeal are as follows: 8. The father of the petitioner i.e. Rahat Husain was an Assistant Teacher in Government Girls Inter College, Etah which is attached to Pandit Deen Dayal Upadhyay Government Model Inter College, Moiuddinpur, Jaithra (Etah). He died in harness on 21.04.2021. As per the heirs certificate including the service record, Sri Rahat Husain had five heirs i.e. Tabassum Khan (wife), Nabeel Husain (son-petitioner-appellant), Iram Jafri (married daughter), Km. Alihara Husain (unmarried daughter) and Km. Alkhizra Husain (unmarried daughter). The wife of Rahat Husain i.e. Tabassum Khan is a Head-Mistress in a Basic School under the Basic Shiksha Parishad. 9. On death of Rahat Husain, the petitioner applied for compassionate appointment by taking recourse to the provisions of the Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974 456 INDIAN LAW REPORTS ALLAHABAD SERIES ("for short 1974 Rules"). As the claim of the petitioner was not being considered, Writ A No. 1019 of 2021 was filed for a direction upon the concerned respondent to consider the claim of the petitioner for appointment on the post of Assistant Teacher in Government Girls Inter College, Etah on compassionate ground. The said petition was disposed off vide order dated 2.03.2022 requiring the concerned officer to take an appropriate decision. Pursuant to that direction, the District Inspector of Schools, Etah (DIOS) considered the claim and rejected it by order dated 23.05.2022, inter alia, on the ground that spouse of the deceased employee was a Headmistress in a Basic School under the Basic Shiksha Parishad. This order dated 23.05.2022 was challenged in Writ A No. 15313 of 2022 which has been dismissed by the order impugned in this appeal. 10. We have heard counsel for the appellant and the learned Standing Counsel for the Respondents at length. 11. It is not in dispute that the claim of the appellant for compassionate appointment was made under the 1974 Rules. The relevant portion of Rule 5 (1) of the 1974 Rules is extracted below: "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 purposes, 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, ..... " 12. Perusal of the aforesaid extracted Sub-Rule (1) of Rule 5 of 1974 Rules would indicate that the claim for compassionate appointment is not maintainable where the spouse of the deceased government servant is already employed under the Central Government or a State Government or a Corporation owned or controlled by the Central Government or a State Government. 13. In the instant case, there is no dispute that the spouse of the deceased employee, namely Tabassum Khan, is employed as Head-Mistress of a primary institution under the Board of Basic Education which is established by the State Government under Section 3 of the U.P. Basic Education Act, 1972 and is under the control of the State Government as per section 13 of the 1972 Act. 14. The learned counsel for the appellant to wriggle out of the situation submits that Tabassum Khan is appellant's step mother. Appellant is son of predeceased wife of deceased employee Rahat Hussain therefore, appellant's case is a typical case where he would get no benefit of his step mother's employment. 15. The above submission is not acceptable because compassionate appointment cannot be claimed as of right. It can be provided only if the policy or the rules governing such appointment permits. 12 All. Smt. Omwati Vs. Collector, District Pilibhit & Ors. 457 Rule 5(1) allows a claim for compassionate appointment only when the spouse of the deceased employee 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 therefore, once it is not in dispute that Tabassum Khan, spouse of the deceased employee was under employment as noticed above, the claim for compassionate appointment was not sustainable. Consequently, the claim of the petitioner for compassionate appointment was rightly rejected and the learned Single Judge was justified in dismissing the writ petition. 16. The Appeal is dismissed. ---------- (2022) 12 ILRA 457 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 10.11.2021 BEFORE THE HON'BLE DR. YOGENDRA KUMAR SRIVASTAVA, J. Writ-C No. 31006 of 2021 With Writ-C No. 31010 of 2021 Smt. Omwati ...Petitioner Versus Collector, District Pilibhit & Ors. ...Respondents Counsel for the Petitioner: Sri Siddharth Nandan Counsel for the Respondents: C.S.C. A. Civil Law - UP Revenue Code, 2006 - Section 98(1) - UP Revenue Code Rules, 2016 - R. 99 - Transfer of land by a person belongs to Schedule Caste - Restriction imposed - Permission was rejected on the ground that she had not produced any certificate from the Gram Pradhan to the effect that no member of the Scheduled Caste/Scheduled Tribe of the village was ready to purchase the property in question - Validity challenged - High Court set aside the impugned orders holding that it was passed in the absence of consideration of the relevant provisions and being based on wholly irrelevant consideration and as such are legally unsustainable. (Para 19 and 26) B. Discretionary power - Exercise thereof - Keeping the irrelevant consideration in mind - Effect - Held, if the exercise of the discretionary power has been influenced by considerations that cannot lawfully be taken into account or by disregard of the relevant considerations required to be taken into account, the decision arrived at by the authority would be invalid. (Para 23) Writ petition allowed. (E-1) List of Cases cited :- 1. Sitaram Vs St. of U.P. & ors.; 2022 (155) RD 178 2. R. Vs St Pancras Vestry; (1890) 24 Q.B.D. 371 3. Associated Provincial Picture Houses, Ltd. Vs Wednesbury Corp.; [1947] 2 All E.R. 680 4. Padfield & ors. Vs Minister of Agriculture, Fisheries & Food & ors.; [1968] 1 All E.R. 694 5. Breen Vs Amalamated Engineering Union & ors.; [1971] 2 Q.B. 175 (Delivered by Hon'ble Dr. Yogendra Kumar Srivastava, J.) 1. The two writ petitions are based on similar set of facts and raise common questions of law, accordingly with the consent of the parties, the petitions are being taken up for hearing together.