# Narendra Kumar Upadhyay v. State of U.P. & Ors

- **Citation:** (2021) 11 ILRA 1149
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-22
- **Case number:** Spl. Appl. No. 1601 of 2012
- **Bench:** Surya Prakash Kesarwani, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/narendra-kumar-upadhyay-v-state-of-u-p-ors-46521
- **Pages:** 17

## Headnote

A. Service Law - Compassionate Appointment -
U.P. Dependents of Government Servants
Dying in Harness Rules, 1974: Rule 5 and 6 -
Provision for compassionate appointment is an
exception to the principle that there must be
an equality of opportunity in matters of public
employment. The exception to be constitutionally
valid has to be carefully structured and implemented
in order to confine compassionate appointment to
only those situations which subserve the basic object
and purpose which is sought to be achieved. (Para 22
to 25, 35)

B. Object of compassionate appointment is to
enable the family of the deceased - employee
to tide over the sudden financial crisis due to
death of the bread earner which has left the
family in penury and without means of
livelihood, it is an exception to the normal rule
of public employment, it is a concession.
Compassionate Appointment cannot be treated as a
Bonanza. It is not disbursement of gift. It is meant to
provide minimum relief for meeting immediate
hardship to save the bereaved family from sudden
financial crisis due to death of sole breadwinner.
(Para 23 to 26, 32, 35)

C. Mere death of an employee in harness
does not entitle his family to such source of
livelihood. The Government or the public
authority concerned has to examine the
financial condition of the family of the deceased,
and it is only if it is satisfied, that but for the
provision of employment, the family will not be
able to meet the crisis that a job is to be offered to
the eligible member of the family. If employer finds
that
Financial
arrangement
made for family
subsequent to death of the employee is adequate
members
of
the
family
cannot
insist
for
compassionate appointment. (Para 32, 35(c),
35(d))

D. There is no general or vested right to
compassionate appointment. Compassionate
appointment can be claimed only where a
scheme
or
rules
provide
for
such
appointment. The norms prevailing on the date of
the consideration of the application should be the
basis for consideration of claim for compassionate
appointment. (Para 22, 35(e), 35(j))

E. Rule 5 mandates that ordinarily, an
application for compassionate appointment
must be made within five years of the date of
death of the deceased employee. The powe

## Text

_Characters 0–39,871 of 63,756. This is a partial read: ask again with offset=39871 for what follows._

11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1149
was planned and committed, motive for
commission of crime, conduct of accused, nature
of weapons used
and all other attending circumstances are
relevant facts which would enter into area of
consideration. Further, undue sympathy in
sentencing would do more harm to justice
dispensations and would undermine the public
confidence in the efficacy of law. It is the duty
of every court to award proper sentence having
regard to nature of offence and manner of its
commission. The supreme court further said that
courts must not only keep in view the right of
victim of crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the society
as a whole and rule of law needs to be balanced.

28. The judicial trend in the country has
been towards striking a balance between reform
and punishment. The protection of society and
stamping out criminal proclivity must be the
object of law which can be achieved by
imposing appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain order
and peace, should effectively meet challenges
confronting the society, as society cannot endure
long and develop under serious threats of crime
and disharmony. Thus, the criminal justice
jurisprudence adopted in the country is not
retributive but reformative and corrective. It is
therefore, necessary to avoid undue leniency in
imposition of sentence. At the same time, undue
harshness should also be avoided keeping in
view the reformative approach underlying in our
criminal justice system.

29. In the present case at the time of
commission of offence the convict was nearly 17
years of age. It cannot be said that he was
mature and there is no possibility of reform in
him. The medical report of the victim shows that
he did not sustain any physical 10 injury and
there was no sign of physical violence on him.
There is no previous criminal history of the
appellant. The minimum punishment for the
offence under Section 4 POCSO Act is provided
for 7 years. The appellant has been in jail from
the outset. As such he served in jail for a period
of more than 7 years and there is no minimum
limit provided under Section 377 I.P.C.
Considering the age of the appellant and the
period he served in jail, this Court is of the
opinion that a liberal view should be taken on
sentence by reducing the term of imprisonment
already undergone by the appellant in this case
and for default in payment of fine he will
undergo additional imprisonment for a period of
two months for each.

30. Consequently, the conviction is upheld
and the sentence under Section 377 I.P.C. and
under Section 4 POCSO Act is modified to
already undergone and in default of payment of
fine he is to undergo additional imprisonment
for a period of two months in each.

31. With the above modifications, the
appeal is partly allowed.

32. Copy of this judgment alongwith
original record of Court below be transmitted to
the Court concerned for necessary compliance.
A compliance report be sent to this Court within
one month. Office is directed to keep the
compliance report on record.
----------
(2021)12ILR A1149
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.10.2021

BEFORE

THE HON'BLE SURYA PRAKASH KESARWANI, J.
THE HON'BLE VIKAS BUDHWAR, J.

Spl. Appl. No. 1601 of 2012

Narendra Kumar Upadhyay ...Appellant
Versus
State of U.P. & Ors. ...Respondents
1150 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Neeraj Tiwari, Sri Ashok Khare, Sri Anurag Ojha

Counsel for the Respondents:
C.S.C., Sri Mrigraj Singh, Sri Manvendra Dixit

A. Service Law - Compassionate Appointment -
U.P. Dependents of Government Servants
Dying in Harness Rules, 1974: Rule 5 and 6 -
Provision for compassionate appointment is an
exception to the principle that there must be
an equality of opportunity in matters of public
employment. The exception to be constitutionally
valid has to be carefully structured and implemented
in order to confine compassionate appointment to
only those situations which subserve the basic object
and purpose which is sought to be achieved. (Para 22
to 25, 35)

B. Object of compassionate appointment is to
enable the family of the deceased - employee
to tide over the sudden financial crisis due to
death of the bread earner which has left the
family in penury and without means of
livelihood, it is an exception to the normal rule
of public employment, it is a concession.
Compassionate Appointment cannot be treated as a
Bonanza. It is not disbursement of gift. It is meant to
provide minimum relief for meeting immediate
hardship to save the bereaved family from sudden
financial crisis due to death of sole breadwinner.
(Para 23 to 26, 32, 35)

C. Mere death of an employee in harness
does not entitle his family to such source of
livelihood. The Government or the public
authority concerned has to examine the
financial condition of the family of the deceased,
and it is only if it is satisfied, that but for the
provision of employment, the family will not be
able to meet the crisis that a job is to be offered to
the eligible member of the family. If employer finds
that
Financial
arrangement
made for family
subsequent to death of the employee is adequate
members
of
the
family
cannot
insist
for
compassionate appointment. (Para 32, 35(c),
35(d))

D. There is no general or vested right to
compassionate appointment. Compassionate
appointment can be claimed only where a
scheme
or
rules
provide
for
such
appointment. The norms prevailing on the date of
the consideration of the application should be the
basis for consideration of claim for compassionate
appointment. (Para 22, 35(e), 35(j))

E. Rule 5 mandates that ordinarily, an
application for compassionate appointment
must be made within five years of the date of
death of the deceased employee. The power
conferred by the first proviso is a discretion
to relax the period in a case of undue
hardship and for dealing with the case in a
just and equitable manner. (Para 22, 35)

Where a long lapse of time has occurred
since the date of death of the deceased
employee,
the
sense
of
immediacy
for
seeking compassionate appointment would
cease to exist and this would be a relevant
circumstance
which
must
weigh
with
the
authorities in determining as to whether a case for
the grant of compassionate appointment has been
made
out.
Provisions
for
the
grant
of
compassionate
appointment
do
not
constitute a reservation of a post in favour of
a member of the family of the deceased
employee. Hence, there is no general right
which can be asserted to the effect that a
member of the family who was a minor at the
time of death would be entitled to claim
compassionate appointment upon attaining
majority. Where the rules provide for a period of
time within which an application has to be made,
the operation of the rule is not suspended during
the minority of a member of the family. (Para 23,
35)

The burden lies on the applicant, where there is
a delay in making an application within the
period of five years to establish a case on the
basis of reasons and a justification supported
by documentary and other evidence. It is for the
St.Government after considering all the facts to take
an appropriate decision. The power to relax is in the
nature of an exception and is conditioned by the
existence
of
objective
considerations
to
the
satisfaction of the Government. (Para 22, 35)

F. A candidate for compassionate appointment
has no right to any particular post of choice. He
can only claim to be considered. It is not for
conferring status on the family. An applicant has no
right to claim compassionate appointment in a
particular class or group or on the higher post than
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1151
what was held by the deceased employee as a matter
of right, on the ground that he/she is eligible fulfilling
the eligibility criteria of such higher post. (Para 30,
32, 35)

G. Neither the Governments nor the public
authorities are at liberty to follow any other
procedure or relax the qualifications laid down
by the rules for the post. (Para 32, 35)

In the present case, father of the petitioner died on
7.7.1991 when petitioner was aged about eight years.
He applied for compassionate appointment sometime
in the year 2006-07 and the District Basic Education
Officer granted appointment unauthorisedly, without
grant
of
relaxation
by
the
Competent
Authority/St.Government.
Thus,
the
petitioner
unauthorisedly and in contravention of the GO,
without relaxation of period for submission of
application, obtained appointment on compassionate
ground, which is nullity. Therefore, the appointing
authority has lawfully cancelled the order of
appointment of the petitioner. (Para 35)

Appeal dismissed. (E-4)

Precedent followed:

1. Sheo Kumar Dubey Vs St.of U.P. & ors., 2014 (2)
ADJ 312 (Para 5(ii))

2. Hamza Haji Vs St.of Kerala, 2006 (7) SCC 416
(Para 21)

3. U.O.I. Vs Smt. Asha Mishra, Civil Misc. WP No.
13102 of 2010, decided on 07.05.2010 (Para 23)

4. Central Coalfields Ltd. Through its Chairman &
Managing Director & ors. Vs Parden Oraon, Civil
Appeal No. 897/2021, decided on 09.04.2021 (Para
24)

5. V. Sivamurthy Vs St.of A.P., (2008) 13 SCC 730
(Para 25)

6. Umesh Kumar Nagpal Vs St.of Har., (1994) 4 SCC
138 (Para 25)

7. Haryana SEB Vs Hakim Singh, (1997) 8 SCC 85 at
87 (Para 25)

8. Director of Education (Secondary) Vs Ankur Gupta,
(2003) 7 SCC 704 (Para 25)
9. F.C.I.Vs Ramkesh Yadav, (2007) 9 SCC 531 (Para
25)

10. Indian Bank Vs Promila, (2020) 2 SCC 729 (Para
25)

11. St.of U.P. Vs Pankaj Kumar Vishnoi, 2013 (11)
SCC 178 (Para 25)

12. N.C. Santosh Vs St.of Karn., (2020) 17 SCC 617
(Para 25)

13. St.of H.P. Vs Shashi Kumar, (2019) 3 SCC 653
(Para 25)

14. St.of Gujarat Vs Arvind Kumar Tiwari, (2012) 9
SCC 545 (Para 25)

15. MGB Gramin Bank Vs Chakrawarti Singh, (2014)
13 SCC 583 (Para 25)

16. U.O.I. Vs P. Venktesh, (2019) 15 SCC 613 (Para
25)

17. U.O.I. Vs V.R. Tripathi, (2019) 14 SCC 646 (Para
25)

18. PNB Vs Ashwini Kumar Taneja, (2004) 7 SCC 265
(Para 25)

19. St.of Chhatisgarh & ors. Vs Dhirjo Kumar Sengar,
(2009) 13 SCC 600 (Para 25)

20. Santosh Kumar Dubey Vs St.of U.P., (2009) 6 SCC
481 (Para 25)

21. Chief Commissioner, Central Excise & Customs,
Lucknow & ors. Vs Prabhat Singh, (2012) 13 SCC 412
(Para 26)

22. SAIL Vs Madhusudan, (2008) 15 SCC 560 (Para
26)

23. SBI Vs Anju Jain, (2008) 8 SCC 475 (Para 26)

24. SBI Vs Surya N. Tripathi, (2014) 15 SCC 739
(Para 27)

25. General Manager (D & PB) & ors. Vs Kunti Tiwary
& ors., (2004) 7 SCC 271 (Para 27)

26. U.O.I. Vs Shashank Goswami, (2012) 11 SCC 307
(Para 29)
1152 INDIAN LAW REPORTS ALLAHABAD SERIES
27. Pepsu Road Transport Corporation Vs Satinder
Kumar, 1995 Supp. (4) SCC 597 (Para 29)

28. St.of Madhya Pradesh & ors. Vs Ramesh Kumar
Sharma, (1994) Supp. (3) SCC 661 (Para 30)

29. The Director of Treasuries in Karnataka & Anr. Vs
Somyashree, Civil Appeal No. 5122 of 2021, decided
on 13.09.2021 (Para 31)

30. The St.of Uttar Pradesh & ors. Vs Premlata, Civil
Appeal No. 6003 of 2021, decided on 05.10.2021
(Para 32)

Present Special Appeal challenges judgment
and order dated 13.08.2012, passed by Hon'ble
Mr. Justice V.K. Shukla.

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

1. Heard Sri Ashok Khare, learned Senior
Counsel, assisted by Sri Anurag Ojha, learned
counsel for the petitioner/appellant, Sri Mrigraj
Singh, learned counsel for the respondent nos. 2
and 3 and Sri Manvendra Dixit, learned counsel
for the respondent no.1.

2. Briefly stated facts of the present case are
that the appellant/petitioner is the son of the
deceased, namely, Gyan Chand Upadhay, who
was working as Assistant Teacher, and has died on
07.07.1991. According to the petitioner/appellant,
he was about 8 years old at the time of death of his
father. His mother, namely, Shashi Kala, made an
application on 23.07.1992 before the District Basic
Education Officer, Jaunpur, seeking appointment
on compassionate ground, which was followed by
a representation dated 14.10.1991 and reminders
dated 23.09.1993, 17.07.1994 and 07.11.1995, but
the
appointment
was
not
granted.
The
petitioner/appellant
passed
his
Intermediate
Examination in the year 2001 and thereafter did
graduation from Purvanchal University, Jaunpur.
Thereafter, he filed Civil Misc. Writ Petition No.
71340 of 2007, which was finally disposed of by
order dated 09.02.2007 providing that the
petitioner/appellant may file representation before
the respondent no.1 ventilating all his grievances.

3. According to the petitioner/appellant, the
respondent no.1 in the aforesaid Writ Petition No.
71340 of 2007, was the State of U.P. However, the
petitioner/appellant instead of filing representation
before
the
State
Government,
moved
an
application for compassionate appointment before
the District Basic Education Officer, Jaunpur, who
granted appointment vide order dated 31.03.2010.
Admittedly, the petitioner/appellant filed an
application for compassionate appointment after
about 9 years of death of his father, but neither
relaxation was sought from the State Government
nor any representation was filed by him before the
State Government pursuant to the order of the
learned Single Judge dated 09.02.2007 nor delay in
filing the application was condoned. Therefore,
show cause notice dated 05.03.2012 was issued by
the District Basic Education Officer, Jaunpur to the
petitioner/appellant requiring him to show cause as
to why his appointment may not be cancelled on
the ground that petitioner/appellant obtained
compassionate appointment by concealment of
facts
and
misrepresentation.
However,
the
petitioner/appellant had not submitted any reply to
the aforesaid show cause notice. Consequently, the
District Basic Education Officer, Jaunpur passed
an order dated 14.04.2012 cancelling the
appointment
of
the
petitioner/appellant
as
untrained assistant teacher. Aggrieved with this
order, the petitioner/appellant filed Civil Misc.
Writ Petition No. 39344 of 2012 (Narendra Kumar
Upadhaya Versus State of U.P. and others), which
was dismissed by the learned Single Judge vide
impugned judgment dated 13.08.2012, observing
as under:-

(I) The said order is in uttar violation of the
order passed by this Court, as in the absence of
order
passed
by
the
State
Government,
according
relaxation,
the
District
Basic
Education Officer, could not have entertained
the
said
application,
and
accorded
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1153
compassionate appointment.
District
Basic
Education Officer, had no authority whatsoever
to accord compassionate appointment, the order
offering
compassionate
appointment
was
void/illegal.

(ii) Thereafter District Basic Education
Officer, has acquired knowledge of fact that date
of death of father of the petitioner is 07.07.1991
and by misrepresenting the then District Basic
Education Officer, Dhirendra Nath Singh
offered appointment to the petitioner after 19
years and same was totally illegal and in
contravention of Government Order.

(iii) Fact of the matter is that this Court
Court has given categorical direction that
matter be considered and decided by the State
Government and accepted position is that there
is no decision of the State Government.

(iv) In the facts of the case District Basic
Education Officer, has rightly proceeded to
revoke the earlier order, inasmuch as earlier
order is based on misrepresentation and law on
the subject is clear, that even if there is no
power of review conferred under statute, every
authority
has
inherent
jurisdiction
to
recall/review its order, if the order has been
passed on misrepresentation.

(v) Consequently, petitioner was not at all
entitled
to
be
offered
compassionate
appointment after 19 years of date of death, and
there was no order passed by the State
Government for accepting the time barred6claim
after 19 years of death of father, and as order
has been obtained by manipulation then this
Court refuses to interfere in the matter as any
interference with the order impugned would
amount to perpetuation of illegality. The State
Government is directed to take action against
erring officials also in accordance with law.

4. The present special appeal has been filed
challenging the aforesaid order dated 13.08.2012
passed in Civil Misc. Writ petition No. 38344 of
2012 (Narendra Kumar Upadhaya Versus State
of U.P. and others).

5. Sri Ashok Khare, learned Senior
Counsel submits as under:-

(i) The petitioner/appellant was only 8
years of age when his father died on 07.07.1991.
Therefore, on attaining the age of majority, he
filed
an
application
for
compassionate
appointment, hence, there was no delay in filing
the application for compassionate appointment.

(ii) The financial condition of the family of
the deceased for the purposes of compassionate
appointment has to be looked into, as on the date
of death of his father. Reliance has been placed
in the case of Sheo Kumar Dubey Versus State
of U.P. and others 2014 (2) ADJ 312.

(iii) Once compassionate appointment has
been
granted
to
petitioner/appellant
on
10.03.2012, then the said order cannot be
reviewed on the ground that the order granting
compassionate appointment is nullity, as the
District Basic Education Officer, Jaunpur has no
power to review its own order.

(iv) The compassionate appointment in the
District Basic Education Department is governed
by the Government Order dated 04.09.2000,
which is pari materia with the provision of the
U.P. Dependents of Government Servants
Dying in Harness Rules, 1974. Therefore, the
petitioner/appellant
was
entitled
for
compassionate appointment and was rightfully
granted the compassionate appointment.

6. Learned Standing Counsel as well as
learned counsel for the respondent nos. 2 and 3
support the impugned order passed by the
learned Single Judge.

7. We have carefully considered the
submission of the learned counsel for the parties.

8. It is undisputed that the deceased
employee died on 07.07.1991 when the
petitioner was about 8 years old. He passed
Intermediate Examination in the year 2001 and
thereafter did his graduation some time in the
1154 INDIAN LAW REPORTS ALLAHABAD SERIES
year 2004. Thereafter, he filed Civil Misc. Writ
Petition No. 71340 of 2007 which was disposed
of by the impugned order dated 09.02.2007
giving liberty to the petitioner/appellant to make
a representation before the respondent no.1
ventilating
all
his
grievances.
However,
petitioner had not filed any representation before
the State Government which has power to
condone/ relax the condition for filing an
application
beyond
five
years.
Petitioner/appellant moved an application before
the District Basic Education Officer, Jaunpur
claiming appointment on compassionate ground
pursuant to the order dated 09.02.2007 passed in
Civil Misc. Writ Petition No. 31340 of 2007.
The District Basic Education Officer, Jaunpur
passed an order of compassionate appointment
on 31.03.2010. Subsequently, show cause notice
dated 05.03.2012 was issued by the District
Basic Education Officer, Jaunpur to show cause
as to why his appointment may not be cancelled,
as
it
was
illegally
obtained.
The
petitioner/appellant, for the reason best known to
him had not submitted any reply before District
Basic Education Officer, Jaunpur. Therefore, the
District Basic Education Officer, Jaunpur passed
order
dated
14.04.2012
cancelling
his
appointment.

9.

Admittedly,
the
father
of
the
petitioner/appellant Sri Gyan Chand Upadhyay
was an Assistant Teacher in a Primary School
Sauraiyyah, Block Khutahan, District Jaunpur,
who died in-harness on 07/07/1991, leaving
behind his widow Smt. Shashi Kala and two
sons, namely, Narendra Kumar Upadhyay
(petitioner/appellant) and Dharmendra. It is also
not in dispute that after the death of Sri Gyan
Chand Upadhyay (since deceased) on 7.7.1991,
his widow Shashi Kala preferred application for
the
grant
of
compassionate
appointment
addressed to the third respondent on 23.7.1991,
followed by reminders dated 14.10.1992,
23.9.1993,
17.7.1994
and
7.11.1995,
respectively. There is nothing on record to
substantiate the fact as to what action had been
taken by the widow of the deceased Smt. Shashi
Kala for enforcement of her legal right to be
considered for compassionate appointment.

10. However, after a span of more than 16
years, it appears that the petitioner/appellant
filed Writ Petition no. 71340 of 2007, Narendra
Kumar Upadhyay vs. State of U.P. and others,
seeking direction to the respondents therein to
consider his claim for grant of compassionate
appointment on account of the death of Sri Gyan
Chand Upadhyay on 7.7.1991. The order dated
9.2.2007 passed in the said writ petition is
reproduced below: -

"It is alleged that father of the petitioner
expired during harness while working as
assistant
teacher
in
Prathmik
Vidyalay
Sauraiyya district Jaunpur. At the relevant time,
petitioner was minor. On attaining majority he
has made an application for compassionate
appointment. Petitioner seeks consideration of
his claim for compassionate appointment under
the relevant provision of the rules applicable.

Sri P.D. Tripathi learned counsel for the
respondents points out that the application has
been made after expiry of five years from the
date of death of the employee concerned. It is
therefore requires relaxation of outer limit fixed
by the State Government.

In view of the aforesaid facts let a
representation be made by the petitioner before
Respondent No.1 ventilating all this grievances
within two weeks from today along with certified
copy of this order. ON such representation being
made, Respondent No.1 shall consider and
decide the same, by means of a reasoned
speaking order, preferably within four weeks
thereafter.

With the aforesaid observations/directions,
the present writ petition is disposed of finally."

11. By the aforequoted order dated
09.02.2007 passed in the Writ Petition No.
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1155
71340 of 2007, direction was issued to the
respondent no.1 therein i.e, the State of Uttar
Pradesh, to consider and decide the claim of the
petitioner/appellant, on representation by him
for
ventilation
of
his
grievances.
The
petitioner/appellant as per her own showing has
appended as Annexures-9 and 10 to the Writ
Petition No. 39344 of 2012, the representation
preferred by him before the respondent no.2 and
3 for consideration of his claim for grant of
compassionate appointment. There is nothing on
record to show that by which manner and by
which mode, the said letters/ representations
were served upon the respondent nos. 2 and 3.

12. Clause-8 of the Government Order
dated 4.9.2000 issued by Secretary, U.P.
Government, addressed to Director Education
(Basic) and Chairman Uttar Pradesh, Basic
Shiksha Parishad, Allahabad providing the
manner according to which compassionate
appointment may be granted to a dependent of a
deceased teacher / employee of the Institutions
of the Uttar Pradesh Basic Shiksha Parishad,
Allahabad, is reproduced below:-

"1⁄481⁄2 e`rd vkfJr -kjk lEcfU/kr deZpkjh ds e`R;q ds
fnukad ls ikap o"kZ ds Hkhrj lsok;kstu ds fy, vkosnu
izLrqr fd;k tk ldrk gSA ijUrq tgka jkT; ljdkj dks ;g
lek/kku gks tk;s fd lsok;kstu ds fy, vkosnu djus ds
fy, fu;r le; lhek ls fdlh fof'k"V ekeys esa] vuqfpr
dfBukbZ gksrh gS ogka og vis{kkvksa dks] ftUgsa og ekeys esa
U;k; laxr vkSj lkE;iw.kZ jhfr ls dk;Zokgh djus ds fy,
vko';d le>s] vfHk;qDr ;k f'kfFky dj ldrh gSA fu;eksa
esa bl vk'k; dh vfHkeqfDr@f'kfFkyhdj.k ds lEcU/k esa]
izLrko lEcfU/kr izkf/kdkjh -kjk f'k{kk funs'kd 1⁄4cs01⁄2 ds ek/;e
ls 'kklu dks izsf"kr fd;s tk;saxsA"

13. Clause-8 of the Government Order
dated 4.9.2000 as referred to above is para
materia with the provisions contained under the
Uttar Pradesh Recruitment of Dependents of
Government Servants Dying in Harness Rules,
1974. Rules 5 and 6 of the Uttar Pradesh Dying
in Harness Rules 1974 (in short "The Rules
1974") are reproduced 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, if such person-

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

(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, it may
dispense with or relax the requirement as it
may consider necessary for dealing with the
case in a just and equitable manner.

(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.]

[5A. Recruitment of member of the family
of Police/P.A.C. Personnel who dies in May,
1973. - Notwithstanding anything contained to
the contrary contained in Rule 5 or in any other
rule, the provisions of these rules shall apply in
the case of members of the family of twenty-two
police or per Provincial Armed Constabulary
personnel who died as a result of disturbances
1156 INDIAN LAW REPORTS ALLAHABAD SERIES
in May, 1973, as they apply in the case of a
Government servant during dying in harness
after the commencement of these rules.]

6. Contents of application for employment.
- An application for appointment under these
rules shall be addressed to the appointing
authority in respect of the post for which
appointment is sought but it shall be sent to the
Head of Office where the deceased Government
servant was serving prior to his death. The
application shall, inter alia, contain the
following information :

(a) the date of the death of the deceased
Government servant; the department in which he
was working and the post which he was holding
prior to his death;

(b) names, age and other details pertaining
to all the members of the family of the deceased,
particularly about their marriage, employment
and income;

(c) details of the financial condition of the
family; and

(d)
the
educational
and
other
qualifications, if any, of the applicant."

14. A conjoint reading of Rule 5 of the
Rules, 1974 and the Government Order dated
4.9.2000, clearly reveals that for the purposes of
consideration for grant of compassionate
appointment to the dependent of the deceased
employee, the dependent has to fulfil the
minimum
requirement,
i.e,
(a)
possess
educational qualification prescribed for the post;
(b) otherwise qualified for service; (c) makes an
application for employment within 5 years from
the date of the death of the deceased. Proviso to
Rule 5 of the Rules, 1974 carves out an
exception to entertain an application beyond five
years, when the State Government is satisfied
that the time limit for making the application for
employment causes undue hardship in any
particular case, it may dispense with or relax the
requirement, as it may consider necessary for
dealing with the case in a just and equitable
manner.

15. Thus from the aforesaid analysis with
respect to the legal provisions as recapitulated
hereinabove and the facts of the present case, it
is crystal clear that the petitioner/ appellant has
neither taken any steps before the State
Government in terms of the Proviso to Rule 5 of
the Rules, 1974, or the aforequoted Clause 8 of
the Government Order for relaxation of outer
limit of five years for consideration of
application for compassionate appointment, nor
any such relaxation was granted by the State
Government.

16. On a pointed query, made from the
learned Senior Counsel, as to whether any
decision
had
been
taken
by
the
State
Government for relaxation of the outer limit of 5
years
for
consideration
for
grant
of
compassionate appointment? The learned Senior
Counsel could not point out from records any
decision so taken by the State Government.

17. Even from perusal of the order dated
31.3.2010 passed by the third respondent
granting compassionate appointment to the
petitioner/appellant, there is no recital about the
mandatory compliance of the Clause-8 of the
Government Order dated 4.9.2000 read with
Rules 5 and 6 of the Rules, 1974.

18. Learned Senior Counsel has further
argued that the family condition of the petitioner
appointment for the purposes of compassionate
appointment has not been looked into as on the
date of the death of the deceased (father).

19. The said argument of the learned
counsel for the petitioner/appellant is not
acceptable, as the stage of consideration of the
claim of the petitioner/appellant for grant of
compassionate appointment can only be seen,
once the hurdle of granting relaxation or
dispensing with the delay in filing the
application for compassionate appointment
beyond 5 years is over. Until and unless
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1157
relaxation is accorded by the State Government
on the basis of an application of the dependent
of the deceased giving required particulars/
details, there was no occasion for respondents to
have considered the claim of the petitioner for
grant of compassionate appointment with regard
to the family condition of the family. Hence we
do not find any error in the order dated
14.4.2012, which has been impugned by the
petitioner/appellant before the learned Single
Judge.

20. The argument of learned counsel for the
petitioner/appellant
that
once
compassionate
appointment
had
been
granted
to
the
petitioner/appellant on 31.3.2010, then it could not
be reviewed by the third respondent, as he has no
power to review its own order, cannot be accepted
as once the order dated 31.3.2010 granting
compassionate appointment was a nullity being in
contravention of the Government Order dated
4.9.2000, then it was open for the third respondent
to cancel its earlier order, which was nullity in the
eyes of law. The learned Single Judge has recorded
a categorical finding of fact in its judgment dated
13.8.2012, which is impugned before us, observing
as under: -

"Petitioner knew that, without his application
for relaxation being allowed by State Government,
he is not entitled to get appointment, even then he
succeeded in procuring appointment. The order was
for the benefit of petitioner, and complicity of
petitioner in procuring order cannot be ruled out in
the facts of the case. Fact of the matter is that
manipulation is writ apparent and petitioner has
already been apprised of the fact that in case any
facts are found concealed, said appointment shall
ipso facto cancelled."

Object and principles of Compassionate
Appointment:-

21. The Apex Court in the case of Hamza
Haji vs. State of Kerala reported in 2006 (7)
SCC 416 in paragraphs 28 and 29 has observed
as under: -

"In Hip Foong Hong vs. H. Neotia and
Company (1918 Appeal Cases 888) the Privy
Council held that if a judgment is affected by
fraudulent conduct it must be set aside. In Rex
vs. Recorder of Leicester (1947 (1) K B 726) it
was held that a certiorari would lie to quash a
judgment on the ground that it has been
obtained
by
fraud.
The
basic
principle
obviously is that a party who had secured a
judgment by fraud should not be enabled to
enjoy the fruits thereof. In this situation, the
High Court in this case, could have clearly
either quashed the decision of the Forest
Tribunal in OA No.247 of 1979 or could have
set aside its own judgment in MFA No.328 of
1981 dismissing the appeal from the decision of
the Forest Tribunal at the stage of admission
and vacated the order of the Forest Tribunal by
allowing that appeal or could have exercised its
jurisdiction as a court of record by invoking
Article 215 of the Constitution to set at naught
the decision obtained by the appellant by
playing a fraud on the Forest Tribunal. The
High Court has chosen to exercise its power as
a court of record to nullify a decision procured
by the appellant by playing a fraud on the court.
We see no objection to the course adopted by the
High Court even assuming that we are inclined
to exercise our jurisdiction under Article 136 of
the Constitution of India at the behest of the
appellant."

22. A Full Bench of this Court in the case
of Shiv Kumar Dubey and others vs. State of
U.P. and others, 2014(2) ADJ, 312 (Para 29),
considered
various
aspects
relating
to
compassionate appointment and held as under :-

"We now proceed to formulate the
principles which must govern compassionate
appointment in pursuance of Dying in Harness
Rules:
1158 INDIAN LAW REPORTS ALLAHABAD SERIES

(i)
A
provision
for
compassionate
appointment is an exception to the principle that
there must be an equality of opportunity in
matters of public employment. The exception to
be constitutionally valid has to be carefully
structured and implemented in order to confine
compassionate appointment to only those
situations which subserve the basic object and
purpose which is sought to be achieved;

(ii) There is no general or vested right to
compassionate appointment. Compassionate
appointment can be claimed only where a
scheme or rules provide for such appointment.
Where such a provision is made in an
administrative
scheme or
statutory
rules,
compassionate appointment must fall strictly
within the scheme or, as the case may be, the
rules;

(iii) The object and purpose of providing
compassionate appointment is to enable the
dependent members of the family of a deceased
employee to tide over the immediate financial
crisis caused by the death of the bread-earner;

(iv) In determining as to whether the
family is in financial crisis, all relevant aspects
must be borne in mind including the income of
the family; its liabilities, the terminal benefits
received by the family; the age, dependency
and marital status of its members, together with
the income from any other sources of
employment;

(v) Where a long lapse of time has
occurred since the date of death of the
deceased employee, the sense of immediacy for
seeking compassionate appointment would
cease to exist and this would be a relevant
circumstance which must weigh with the
authorities in determining as to whether a case
for the grant of compassionate appointment has
been made out;

(vi) Rule 5 mandates that ordinarily, an
application for compassionate appointment must
be made within five years of the date of death of
the deceased employee. The power conferred by
the first proviso is a discretion to relax the
period in a case of undue hardship and for
dealing with the case in a just and equitable
manner;

(vii) The burden lies on the applicant,
where there is a delay in making an application
within the period of five years to establish a
case on the basis of reasons and a justification
supported by documentary and other evidence.
It is for the State Government after considering
all the facts to take an appropriate decision. The
power to relax is in the nature of an exception
and is conditioned by the existence of objective
considerations to the satisfaction of the
government;

(viii)
Provisions
for
the
grant
of
compassionate appointment do not constitute a
reservation of a post in favour of a member of
the family of the deceased employee. Hence,
there is no general right which can be asserted
to the effect that a member of the family who
was a minor at the time of death would be
entitled to claim compassionate appointment
upon attaining majority. Where the rules
provide for a period of time within which an
application has to be made, the operation of the
rule is not suspended during the minority of a
member of the family." (Emphasis supplied by
us)

23. In Civil Misc. Writ Petition No.
13102 of 2010, Union of India Vs. Smt. Asha
Mishra, decided on 7.5.2010, a Division Bench
of this Court has observed as under: -

"The
principles
of
consideration
for
compassionate appointment have been firmly
settled and have been reiterated from time to
time. Compassionate appointment is not a
vested
right
or
an
alternate
mode
of
employment. It has to be considered and
granted under the relevant rules. The object of
compassionate appointment is to tide over an
immediate financial crisis. It is not a heritable
right to be considered after an unreasonable
period, for the vacancies cannot be held up for
11 All. Narendra Kumar Upadhyay Vs. State of U.P. & Ors.
1159
long and that appointment should not ordinarily
await the attainment of majority. Where the
family has survived for long, its circumstances
must be seen before the competent authority
may consider such appointment. It is not to be
ordinarily granted, where a person died close to
his retirement. The Court, however, has
emphasised
time
to
time
and
more
authoritatively
in
National
Institute
of
Technology Vs. Neeraj Kumar Singh, (2007) 2
SCC 481 that such appointment can be granted
only under a scheme. It should not be
considered after a long lapse of time."

24. The judgment in the case of Smt. Asha
Mishra (supra) has also been taken notice by
the Full Bench of this Court in Shiv Kumar
Dubey (supra) reiterating the legal principles so
mandated therein. Recently, the Apex Court in
Civil Appeal No. 897 of 2021, in the matter of
Central
Coalfields
Limited
Through
its
Chairman an Managing Director and Ors. Vs.
Parden Oraon decided on 09.04.2021, in
paragraph 9 has observed as under:-

"9. ... The application for compassionate
appointment of the son was filed by the
Respondent in the year 2013 which is more than
10 years after the Respondent's husband had
gone missing. As the object of compassionate
appointment
is
for
providing
immediate
succour to the family of a deceased employee,
the Respondent's son is not entitled for
compassionate appointment after the passage
of a long period of time since his father has
gone missing."

25.

The
object
of
compassionate
appointment is to enable the family of the
deceased - employee to tied over the sudden
financial crisis due to death of the bread earner
which has left the family in penury and without
means of livelihood, it is an exception to the
normal rule of public employment, it is a
concession; vide; V. Sivamurthy vs. State of
A.P., (2008) 13 SCC 730 (Paras 13-18),
Umesh Kumar Nagpal vs. State of Haryana,
(1994) 4 SCC 138 (Para-2), Haryana SEB vs.
Hakim Singh, (1997) 8 SCC 85 at 87, Director
of Education (Secondary) vs. Ankur Gupta,
(2003) 7 SCC 704 (Para-6), Food Corporation
of India vs. Ramkesh Yadav, (2007) 9 SCC
531 (Para.9), Indian Bank vs. Promila, (2020)
2 SCC 729, State of U.P. vs. Pankaj Kumar
Vishnoi, 2013 (11) SCC 178 (Paras 11-15),
N.C. Santosh vs. State of Karnatka (2020) 17
SCC 617 (Para 18), State of H.P. vs. Shashi
Kumar, (2019) 3 SCC 653 (Para 18), State of
Gujarat vs.