# Om Prakash v. State of U.P. & Ors

- **Citation:** (2021) 1 ILRA 666
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-11-04
- **Case number:** Special Appeal (D) No. 1008 of 2020
- **Bench:** Pritinker Diwaker, Pradeep Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/om-prakash-v-state-of-u-p-ors-46112
- **Pages:** 4

## Headnote

law
-
Compassionate
Appointment - Long delay in seeking
appointment
-
Effect
-
Held,
Compassionate appointment cannot be
treated as a bounty and is to be given to
the needy if the said person is facing
hardship - There cannot be inherent right
to compassionate appointment but rather,
it is a right to provide a succor to a needy
family - Appellant has already survived for
more than nine years after the death of
his mother and as such, he had no
financial constraint. (Para 12 and 19)
Special Appeal dismissed. (E-1)
Cases relied on :-

## Text

666 INDIAN LAW REPORTS ALLAHABAD SERIES
underground as had been given in the Amin's
report. Since there was a wrong reliance on the
papers filed in the Suit No. 274 of 1993 and
since the Amin's report and map had not been
considered in their right perspective, I find that
the courts below fell in error in coming to a
conclusion that the land in question belonged
to the plaintiff. Ends of justice would be
served if the Judgement and Decree of the
Courts below dated 14.3.2016 and 13.5.2016
of the Trial Court and the First Appellate
Court respectively are set aside and the matter
is remanded back to the Trial Court for a
decision afresh with regard to the ownership
after considering the Amin's report in its right
perspective and after giving a finding
independent of the papers/pleadings which
related to the Suit No. 274 of 1993. The matter
is,therefore, remanded back to the Trial Court.

12. The substantial questions no. 1, 4 and
7 which were argued by the Appellants
counsel are accordingly answered. The other
question need not be answered.

13. The second appeal is partly allowed.
----------
(2021)01ILR A666
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.11.2020

BEFORE

THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE PRADEEP KUMAR
SRIVASTAVA, J.

Special Appeal (D) No. 1008 of 2020

Om Prakash ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Prakash Chandra Srivastava, Sri Vishnu
Prakash
Counsel for the Respondents:
C.S.C., Sri Shishir Prakash

A.
Service
law
-
Compassionate
Appointment - Long delay in seeking
appointment
-
Effect
-
Held,
Compassionate appointment cannot be
treated as a bounty and is to be given to
the needy if the said person is facing
hardship - There cannot be inherent right
to compassionate appointment but rather,
it is a right to provide a succor to a needy
family - Appellant has already survived for
more than nine years after the death of
his mother and as such, he had no
financial constraint. (Para 12 and 19)
Special Appeal dismissed. (E-1)
Cases relied on :-
1. Umesh Kumar Nagpal Vs St. of Har. ,
(1994) 4 SCC 138
2. U.O.I. Vs Bhagwan , (1995) 6 SCC 436
3. Haryana State Electricity Board Vs
Naresh Tanwar, (1996) 8 SCC 23
4. St. of U.P. & ors.. Vs Paras Nath, AIR
1998 SC 2612
5. Director of Education (Secondary) & anr.
Vs Pushpendra Kumar & ors., AIR 1998 SC
2230
6. S. Mohan Vs Government of Tamil Nadu
& anr., 1999 (I) LLJ 539
7. SBI Vs Anju Jain, (2008) 8 SCC 475
8. P.N.B. & ors.Vs Ashwini Kumar Taneja
(2004) 7 SCC 265
9. General Manager (D&PB) & ors. Vs Kunti
Tiwari & anr. (2004) 7 SCC 271

(Delivered by Hon'ble Pritinker
Diwaker, J.)

(04.11.2020)

Order
on
Civil
Misc.
Delay
Condonation Application
1 All. Om Prakash Vs. State of U.P. & Ors.
667

1. Heard learned counsel for the
appellant
on
the
application
seeking
condonation of delay in filing the appeal.

2. For the reasons mentioned in the
application, the same is allowed.

3. Delay in filing the appeal is
condoned.

4. Office to allot regular number to
the appeal.

Order on Appeal

5. Sri Prakash Chandra Srivastava, for
the appellant, Sri Shad Khan, for the
respondent nos. 2 & 3 and Sri Ankit Gaur,
learned State counsel for respondent no. 1.

6. Challenge in this appeal is to the
order dated 09.09.2020 passed by learned
Single Judge dismissing the writ petition
filed
by
the
appellant
seeking
compassionate appointment.

7. Facts of the case in brief are that
one Chameli Devi, who was working as
Peon in the Department of Vidyut Janpad
Anurakshan
Khand-First,
Kasimpur,
Aligarh died during service on 03.11.2011.
The appellant claiming himself to be
adopted son of Chameli Devi, filed an
application
seeking
compassionate
appointment. As the relation between the
appellant and the deceased was doubted by
the department, the appellant approached
the civil court for obtaining succession
certificate. It has been informed that second
appeal between the parties in this relation is
still pending before this Court.

8.

When
the
compassionate
appointment was denied to the petitioner,
he filed the writ petition before this Court
seeking compassionate appointment. By the
impugned judgement, writ Court has
dismissed the writ petition on the ground
that as on date, the appellant is overage
and, therefore, he is not entitled for
compassionate appointment.

9. Learned counsel for the appellant
submits that there is no upper age limit
prescribed for appointing a person on
compassionate ground and, therefore, the
writ Court has erred in law in dismissing
the
writ
petition.
He
submits
that
immediately after the death of his mother,
the appellant had applied for compassionate
appointment and he cannot be blamed for
any delay, if occurred, on the part of
department. He admits that as on date, the
appellant is aged about 46 years and has
already received about Rs. 13 Lakhs
towards the retiral dues of the deceased.

10. We have heard the parties.

11. In our opinion, the only issue
which has to be examined is whether the
applicant, who has already received the
retiral
dues
and
praying
for
compassionate appointment, after a delay
of long period, aged about 46 years at
present is entitled to compassionate
appointment or not.

12. It is trite to say that law in respect
of compassionate appointment is very clear
and the same cannot be treated as a bounty
and is to be given to the needy if the said
person is facing hardship. There cannot be
inherent
right
to
compassionate
appointment but rather, it is a right to
provide a succor to a needy family.

13. In the case of Umesh Kumar
Nagpal v. State of Haryana [(1994) 4
SCC 138], the Apex Court held that:
668 INDIAN LAW REPORTS ALLAHABAD SERIES

"For
these
very
reasons,
the
compassionate
employment
cannot
be
granted after a lapse of a reasonable
period which must be specified in the rules.
The consideration for such employment is
not a vested right which can be exercised at
any time in future. The object being to
enable the family to get over the financial
crisis which it faces at the time of the death
of the sole breadwinner, the compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

14. An appointment on compassionate
basis claimed after a long time has
seriously been deprecated in Union of
India Vs. Bhagwan 1995 (6) SCC 436
and Haryana State Electricity Board Vs.
Naresh Tanwar, (1996) 8 SCC 23. The
Court has said:

"compassionate appointment cannot
be granted after a long lapse of reasonable
period
and
the
very
purpose
of
compassionate
appointment,
as
an
exception to the general rule of open
recruitment, is intended to meet the
immediate financial problem being suffered
by the members of the family of the
deceased employee...... the very object of
appointment of dependent of deceasedemployee who died in harness is to relieve
immediate hardship and distress caused to
the family by sudden demise of the earning
member
of
the
family
and
such
consideration cannot be kept binding for
years."

15. In State of U.P. & Ors. Vs. Paras
Nath AIR 1998 SC 2612, the Court said:

"The purpose of providing employment
to a dependent of a government servant
dying in harness in preference to anybody
else, is to mitigate the hardship caused to
the family of the employee on account of
his unexpected death while still in service.
To alleviate the distress of the family, such
appointments
are
permissible
on
compassionate grounds provided there are
Rules providing for such appointment. The
purpose is to provide immediate financial
assistance to the family of a deceased
government
servant.
None
of
these
considerations can operate when the
application is made after a long period of
time such as seventeen years in the present
case."

16. In Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors. AIR 1998 SC 2230, Court
said:

"The object underlying a provision for
grant of compassionate employment is to
enable the family of the deceased employee
to tide over the sudden crisis resulting due
to death of the bread earner which has left
the family in penury and without any means
of livelihood."

17. In S. Mohan Vs. Government of
Tamil Nadu and Anr. 1999 (I) LLJ 539,
Court said:

"The object being to enable the family
to get over the financial crisis which it
faces at the time of the death of the sole
breadwinner,
the
compassionate
employment cannot be claimed and offered
whatever the lapse of time and after the
crisis is over."

18. In SBI v. Anju Jain, (2008) 8
SCC 475, Court said:

"Appointment
on
compassionate
ground is never considered a right of a
1 All. Hemant Kumar Singh Vs. State of U.P. & Ors.
669
person. In fact, such appointment is
violative of rule of equality enshrined and
guaranteed under Article 14 of the
Constitution. As per settled law, when any
appointment is to be made in Government
or semi-government or in public office,
cases of all eligible candidates must be
considered alike. That is the mandate of
Article 14. Normally, therefore, the State or
its instrumentality making any appointment
to public office, cannot ignore such
mandate. At the same time, however, in
certain circumstances, appointment on
compassionate ground of dependants of the
deceased employee is considered inevitable
so that the family of the deceased employee
may not starve. The primary object of such
scheme is to save the bereaved family from
sudden financial crisis occurring due to
death of the sole bread earner. It is thus
an exception to the general rule of equality
and not another independent and parallel
source of employment."

19. In the present case, the appellant
has already survived for more than nine
years after the death of his mother and as
such, he had no financial constraint.
Moreover, he has already received Rs. 13
Lakhs towards the retiral dues of his
mother and thus, has sufficient amount for
his survival. Law in this respect is also
clear. In the case of Punjab National Bank
& Ors V. Ashwini Kumar Taneja (2004)
7 SCC 265, and in General Manager
(D&PB) & Ors V Kunti Tiwari & Anr
(2004) 7 SCC 271, the Apex Court has held
that:

"compassionate appointment has to be
made in accordance with the Rules,
Regulations or administrative instructions
taking into consideration the financial
condition of the family of the deceased.
Whereas the scheme provides that in case
the family of the deceased gets the
retrial/terminal
benefits
exceeding
a
particular ceiling, the dependant of such
deceased employee, would not be eligible
for compassionate appointment."

20. Considering the cumulative effect
of the entire facts, we are of the view that
the
appellant
is
not
entitled
for
compassionate appointment. Learned single
Judge was justified in dismissing the writ
petition. The appeal has no substance, the
same is accordingly dismissed.
----------
(2021)01ILR A669
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.11.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE SAMIT GOPAL, J.

Special Appeal (D) No. 1063 of 2020

Hemant Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Praveen Kumar, Damodar Singh, Sri
Devendra Vikram Singh, Sri Pradeep Kumar

Counsel for the Respondents:
C.S.C.

A. Practice and Procedure - Special Appeal
- Maintainability - Writ order passed on
consent
-
Though
availability
of
alternative remedy is not a bar in
entertaining writ petition under Article
226 of the Constitution, but writ petition
was dismissed on the admitted fact of
availability of alternative remedy - Held,
Special Appeal is not maintainable as it
has been filed against an order passed
with consent - Appellant-petitioner is at
liberty to seek his appropriate remedy