# Oriental Insurance Co. Ltd., Moradabad v. Smt. Priyanka Agarwal

- **Citation:** (2023) 8 ILRA 225
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-04
- **Case number:** Special Appeal No. 309 of 2019
- **Bench:** Saumitra Dayal Singh, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/oriental-insurance-co-ltd-moradabad-v-smt-priyanka-agarwal-50598
- **Pages:** 9

## Headnote

Sri Vijay Prakash Jaiswal

The
claim
for
compassionate
appointment must be considered in
accordance with the scheme prevailing
on the date of death of the employee,
not
based
on
any
subsequent
or
retrospective change in policy. In the
present case, the deceased employee
died
on
06.09.2014,
before
the
reintroduction of the compassionate
appointment scheme, which came into
effect prospectively from 01.11.2014,
as per Clause 8 of the Scheme notified
on
07.08.2014.The
learned
single
judge's
direction
to
consider
the
respondent's application ignoring the
cut-off date was set aside, as no
challenge was made to the validity of
the cut-off date (Clause 8) in the writ
petition. Compassionate appointment is
not
a
fundamental
right
but
an
exception to Article 14 and 16; it must
be interpreted strictly per the scheme.
Doctrine
of
equality
in
public
employment
overrides
any
claim
of
retrospective entitlement in absence of legal
provision or constitutional challenge. Appeal
Allowed. Order of the single judge set aside.

Appeal allowed.

Reference:

## Text

8 All. Oriental Insurance Co. Ltd., Moradabad Vs. Smt. Priyanka Agarwal
225
selection was held but the same was
questioned on the ground that their
appointment was void ab initio as at that
time the Committee was only on the
strength of interim order. The similar view
was taken by a Division Bench of this
Court in the case of Committee of
Management Gangadin Ram Kumar
Inter College, Ramgarh Barwan, District
Jaunpur
v.
Deputy
Director
of
Education, Vth Region, Varanasi and
others, 2006(4) ADJ 381 (DB). The
question of effective control over the
managerial
affairs
of
an
educational
institution has also been emphasized by the
Five Judges Full Bench of this Court in the
case of Committee of Management, Pandit
Jawaharlal
Nehru
Inter
College,
Bansgaon and Anr. v. Deputy Director of
Education, Gorakhpur & Ors. reported in
AIR 2005 Allahabad 101 (FB).

25. In view of the aforesaid position
of law, I find that there being no rival
Committee or Society raising objection
with regard to the office bearership of the
plaintiffs,
there
being
no
suit
or
proceedings under the proviso attached to
Section 6 of the Act, 1860, there being
sufficient
material
to
establish
that
plaintiffs were under effective and actual
control over the affairs of the Society, and
their control being saved by doctrine of
both de facto and de jure management, I
find that suit for eviction of the tenantpetitioner from the immovable property
was very much maintainable in the light of
the provisions of Sections 5 and 6 of the
Societies Registration Act 1860, Order VII
Rules 1(b) and 4 of the Civil Procedure
Code, 1908, Section 105 of the Transfer of
Property Act read with Second Schedule of
U.P. (Amendment) contained in Section 15
of the Provincial Small Causes Court Act,
1887.

26. No other point was argued.

27. The findings recorded by the
Judge Small Causes Court as affirmed by
the revisional court are pure findings of fact
which do not require any interference in
exercise of powers under Article 227 of the
Constitution of India, and the present
petition alongwith nine other petitions (as
noted
hereinabove)
fail
and
are,
accordingly, dismissed.

28. The petitioners are granted time to
vacate the shop(s) in dispute on or before
30.04.2024 provided they continue to
deposit admitted rent before the Judge
Small Causes Court, month-to-month,
which shall be released in favour of the
plaintiff-respondents
without
furnishing
any security. It is also provided that, in
case, the petitioners fail to vacate the shops
in dispute as directed hereinabove, the
Executing Court shall execute the decree of
eviction forthwith by using force on or
before 31.05.2024 i.e. within a month of
the last date fixed by this Court saving
possession of the petitioners.
----------
(2023) 8 ILRA 225
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2023

BEFORE

THE HON'BLE SAUMITRA DAYAL SINGH, J
THE HON'BLE VINOD DIWAKAR, J.

Special Appeal No. 309 of 2019

Oriental Insurance Co. Ltd., Moradabad
 ...Appellant
Versus
Smt. Priyanka Agarwal ...Respondent

Counsel for the Appellant:
Sri Amaresh Sinha, Sri Anubhav Sinha
226 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
Sri Vijay Prakash Jaiswal

The
claim
for
compassionate
appointment must be considered in
accordance with the scheme prevailing
on the date of death of the employee,
not
based
on
any
subsequent
or
retrospective change in policy. In the
present case, the deceased employee
died
on
06.09.2014,
before
the
reintroduction of the compassionate
appointment scheme, which came into
effect prospectively from 01.11.2014,
as per Clause 8 of the Scheme notified
on
07.08.2014.The
learned
single
judge's
direction
to
consider
the
respondent's application ignoring the
cut-off date was set aside, as no
challenge was made to the validity of
the cut-off date (Clause 8) in the writ
petition. Compassionate appointment is
not
a
fundamental
right
but
an
exception to Article 14 and 16; it must
be interpreted strictly per the scheme.
Doctrine
of
equality
in
public
employment
overrides
any
claim
of
retrospective entitlement in absence of legal
provision or constitutional challenge. Appeal
Allowed. Order of the single judge set aside.

Appeal allowed.

Reference:

1. Gazula Dasaratha Rama Rao Vs St. of A.P.,
AIR 1961 SC 5377

2. Umesh Kumar Nagpal Vs St. of Har., (1994) 4
SCC 138

3. Ajay Hasia Vs Khalid Mujib Sehravardi, (1981)
1 SCC 722 -

4. R.K. Garg Vs U.O.I., (1981) 4 SCC 675 -

5. S. B.I. Vs Jaspal Kaur, (2007) 9 SCC 571

6. Bhawani Prasad Sonkar Vs U.O.I., (2011) 4
SCC 209

7. S.B.I. Vs Raj Kumar, (2010) 11 SCC 661 -
8. MGB Gramin Bank Vs Chakrawarti Singh,
(2014) 13 SCC 583

9. Canara Bank Vs M. Mahesh Kumar, (2015) 7
SCC 412 -

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

11. N.C. Santosh Vs St. of Karn., (2020) 7 SCC
617

12. St. of M.P. Vs Amit Shrivas, (2020) 10 SCC
496

13. St. of M.P. Vs Ashish Awasthi, (2022) 2 SCC
157

14. Secretary to Government Department of
Education (Primary) Vs Bhemesh @ Bheemappa,
2021 SCC OnLine 1264

15. St. of U.P. Vs Himanshu Yadav, Special
Appeal No. 126 of 2023

(Delivered by Hon'ble Saumitra Dayal
Singh, J.
&
Hon'ble Vinod Diwakar, J.)

1. Heard Sri Anubhav Sinha,
Advocate, holding brief of Sri Amaresh
Sinha, learned counsel for the respondentappellant and Sri Vijay Prakash Jaiswal,
learned
counsel
for
the
petitionerrespondent.

2. The present intra-court appeal has
been filed against the order of the learned
single-judge dated 22.2.2019 passed in
Priyanka Agarwal Vs. Union of India and
2 Ors. (Writ-A No. 51712 of 2017). By that
order, the learned single-judge has allowed
the writ petition and directed the appellantrespondent to consider the claim of the
respondent-petitioner
for
grant
of
compassionate appointment, ignoring the
cut-off date i.e. 1.11.2014 arising under the
Scheme for Compassionate Appointment in
8 All. Oriental Insurance Co. Ltd., Moradabad Vs. Smt. Priyanka Agarwal
227
Public Sector and General Insurance
Companies,
introduced
vide
communication dated 7th August, 2014,
issued by the Director, Department of
Financial Services, Ministry of Finance,
Government of India.

3. The petitioner's husband Sri
Surendra Kumar Agarwal died-in-harness
on 6.9.2014, while working on the post of
Assistant, with the Oriental Insurance
Company Ltd., Moradabad. Undisputedly,
on the date of occurrence of his death, there
did not exist a scheme for grant of
compassionate appointment, to his family
members. In fact, there existed and was
enforced a scheme for grant of Ex-gratia
payment, to the family of the deceasedemployees of the Oriental Insurance
Company Ltd.

4.

Later,
on
7.8.2014,
vide
communication issued by the Director,
Department of Financial Services, Ministry
of Finance, Government of India, the
Scheme for Grant of Compassionate
Appointment, was published. For ready
reference, Clause 8 of the Scheme for
Grant of Compassionate Appointment,
reads as below:

"8. The scheme comes into force
prospectively from 01st November 2014.
Application for employment under the
Scheme from eligible dependent should
normally be considered up to five years
from the date of death or retirement on
medical grounds taking place on or after
01st November, 2014 and decision to be
taken on merit in each case."

5. On 12.12.2014, the present
petitioner-respondent filed her application
for grant of compassionate appointment. It
was rejected by communication dated
5.3.2015 for the reason that the death had
occurred prior to the cut-off date. Here, it
may also be noted, much earlier there
existed
a
scheme
for
grant
of
compassionate appointment. However, it
was discontinued with effect from 1.6.2002
and replaced with the scheme providing for
Ex-gratia payment.

6. In the writ petition, the only prayer
made reads as below:

"(a) Issue a writ, order or
direction in the nature of mandamus
directing the respondent nos. 1 and 2 to
appoint the petitioner on compassionate
ground as soon as possible and in this
regard efforts may be done by the
respondents.

(b) Issue a writ, order or
direction in the nature of mandamus
directing the respondent no.2 to decide the
representations of the petitioner pending
before him.

(c) Issue any other writ, order or
direction which this Hon'ble Court may
deem fit and proper in the circumstance of
the case."

7. While allowing the writ petition,
the learned Single Judge has observed as
below:

"I
have
considered
the
submissions of the parties.

An employee or the dependent
cannot decide his/her date of death. It is
not in the hands of dependent of an
employee or the employee himself/herself
when he/she would die. Even before
1.11.2014 there was old scheme of 2002
and there is no dispute that under the old
scheme, the petitioner was entitled for
being given compassionate appointment.
The petitioner's claim for appointment on
228 INDIAN LAW REPORTS ALLAHABAD SERIES
compassionate ground is being denied on
the ground of new scheme in which an
artificial date of death of an employee i.e.
1.11.2014 is fixed, which has no basis.
Even otherwise, the petitioner was entitled
for consideration of appointment on
compassionate ground under the old
scheme when the death of the husband of
the petitioner was occurred on 6.9.2014

Considering the fact that the date
of death of an employee has been fixed in
an artificial manner, the same cannot be
made basis for denying the legitimate claim
of the petitioner for appointment on
compassionate ground.

Accordingly, the present writ
petition is allowed and the respondents are
directed to consider the claim of the
petitioner for compassionate appointment
ignoring the cut off date i.e. 1.11.2014 and
take a decision in accordance with law and
appoint the petitioner on compassionate
ground, if she is otherwise found eligible
and qualified, within a period of one month
from today."

8. Having heard counsel for the
parties and having perused the record, we
find, on the date of occurrence of the death
of Sri Surendra Kumar Agarwal, there did
not exist any scheme for grant of
compassionate appointment. On that date,
there existed a scheme to provide Ex-gratia
payment to the family of the deceasedemployee. The scheme for compassionate
appointment that was earlier discontinued
with effect from 1.6.2002, was first reintroduced by communication dated 7th
August, 2014 written by the Director,
Department of Financial Services, Ministry
of Finance, Government of India. As noted
above, that scheme was made effective
prospectively from 1.11.2014 with further
clarification, it would apply only to cases
where the death may occur on or after
1.11.2014.

9. In absence of any challenge raised
to Clause 8 of that Scheme, it remains well
settled in law that grant of compassionate
appointment is not a fundamental right. In
fact, that concession exists by way of an
exception to the fundamental right to
equality
in
employment.
Being
an
exception, it has to be construed strictly in
terms of the scheme under which that
exception has been created. Here, it may be
noted, from the earliest time, under our
Constitutional
scheme,
claims
for
appointment on public posts on descent
only, were looked down upon being in
violation of the fundamental right to
equality in public employment as was
observed in a five judge Bench decision of
the Supreme Court in Gazula Dasaratha
Rama Rao Vs. State of Andhra Pradesh &
Ors., AIR 1961 SC 5377, at the same time
grant of compassionate appointment to a
family member of an employee who may
have suffered death-in-harness, thereby
suddenly visiting the circumstances of
destitution on his hapless family, was
recognized as a permissible exception to
the general rule of equality arising under
Articles 14 and 16 of the Constitution of
India. Thus, in Umesh Kumar Nagpal Vs.
State of Haryana, (1994) 4 SCC 138, it
was held:

"2. The question relates to the
considerations which should guide while
giving appointment in public services on
compassionate ground. It appears that
there has been a good deal of obfuscation
on the issue. As a rule, appointments in the
public services should be made strictly on
the basis of open invitation of applications
and met-it. No other mode of appointment
nor any other consideration is Neither the
8 All. Oriental Insurance Co. Ltd., Moradabad Vs. Smt. Priyanka Agarwal
229
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. However, to this general
rule which is to be followed strictly in every
case, there are some exceptions carved out
in the interests of justice and to meet
certain contingencies. One such exception
is in favour of the dependants of an
employee dying in harness and leaving his
family in penury and without any means of
livelihood. In such cases, out of pure
humanitarian consideration taking into
consideration the fact that unless some
source of livelihood is provided, the family
would not be able to make both ends meet,
a provision is made in the rules to provide
gainful
employment
to
one
of
the
dependants of the deceased who may be
eligible for such employment. The whole
object
of
granting
compassionate
employment is thus to enable the family to
tide over the sudden crisis. The object is
not to give a member of such family a post
much less a post for post held by the
deceased. What is further, 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.
The posts in Classes III and IV are the
lowest posts in non-manual and manual
categories and hence they alone can be
offered on compassionate grounds, the
object being to relieve the family, of the
financial destitution and to help it get over
the
emergency.
The
provision
of
employment in such lowest posts by making
an exception to the rule is justifiable and
valid since it is not discriminatory. The
favourable
treatment
given
to
such
dependent of the deceased employee in
such posts has a rational nexus with the
object sought to be achieved, viz., relief
against destitution. No other posts are
expected or required to be given by the
public authorities for the purpose. It must
be remembered in this connection that as
against the destitute family of the deceased
there are millions of other families which
are equally, if not more destitute. The
exception to the rule made in favour of the
family of the deceased employee is in
consideration of the services rendered by
him and the legitimate expectations, and
the Change in the status and affairs, of the
family
engendered
by
the
erstwhile
employment which are suddenly upturned."

10. In the present facts, the Scheme
for Compassionate Appointment clearly
provides that that exception to the rule of
equality in employment may be granted
only in deserving cases, where death may
occur on or after 1.11.2014. Therefore, in
the first place, it never became open to the
learned single-judge to confer any right to
claim compassionate appointment on any
person who may not have been eligible
owing to that stipulation of the cut-off date.

11. Then, in the absence of any
challenge raised to the validity of Clause-8
of the Scheme for Grant of Compassionate
Appointment, first introduced with effect
from 1.11.2014, it further never became
open to the learned single-judge, either to
consider or to read that cut-off date was
arbitrary. Before such conclusion may have
been drawn, there must have existed a
direct challenge raised to the cut-off date
prescribed by the Scheme for Grant of
Compassionate Appointment. Since, the
petitioner chose to only seek a direction to
decide her application without challenging
230 INDIAN LAW REPORTS ALLAHABAD SERIES
the cut-off date prescribed under the
scheme
for
grant
of
compassionate
appointment, that observation of the
learned single-judge that Clause 8 is
arbitrary, is not founded, either on facts or
in law, as neither any fact was pleaded to
base that premise nor any relief was sought,
of that nature.

12. In that light, the submission of
learned
counsel
for
the
respondentpetitioner, on the strength of five-judge
bench decisions of the Supreme Court in
Ajay Hasia Vs. Khauid Mujib Sehravardi
(1981) 1 SCC 722 and R.K. Garg Vs.
Union of India and others (1981) 4 SCC
675, cannot be entertained with any
seriousness.

13.

Matters
of
constitutional
validity are to be considered only in
deserving cases, where necessary facts
are first pleaded and specific challenge
is raised on such pleadings. The Writ
Court may never entertain such a
challenge or enter into that exercise in a
cavalier manner. A presumption as to
validity of the law pre-exists under our
jurisprudence. In absence of specific
challenge
raised,
the
submission
advanced could not have been taken up
less so decided in favour of the
petitioner-respondent.

14. The further submission attempted
to be advanced on the strength of Section
17(A) of the General Insurance Business
(Nationalisation) Act, 1972 also does not
merit any acceptance, as Clause 1 thereto
applies to terms and conditions of service
of
officers
and
employees
of
the
Corporation. It has nothing to do with the
claim
for
grant
of
compassionate
appointment to a family member of a
deceased-employee. Therefore, no benefit
may be drawn from the language of Section
17(A) (6) of the Act.

15. Though, parties are at variance as
to the law to be applied with respect to the
date of death or with respect to the date of
claim being filed or with respect to the date
of being considered, we may only note that
in State Bank of India and Others Vs.
Jaspal Kaur (2007) 9 SCC 571, the
employee died in harness on 01.8.1999.
The application for grant of compassionate
appointment,
made
by his
wife
on
05.2.2000
came
to
be
rejected
on
07.1.2002. Later a scheme for grant of
compassionate appointment was introduced
on 04.8.2005. The High Court issued a
direction to the bank to consider the
application filed earlier, under the new
scheme. That decision of the High Court
was reversed by the Supreme Court. The
same principle was reiterated in Bhawani
Prasad Sonkar Vs. Union of India and
Others (2011) 4 SCC 209. In State Bank
of India Vs. Raj Kumar (2010)11 SCC
661, it was opined, the Scheme for Grant of
Compassionate Appointment existing on
the date of decision will govern the fate of
all pending applications. That view was
reiterated in MGB Gramin Bank Vs.
Chakrawarti Singh (2014) 13 SCC 583.

16. Again in Canara Bank and
Another Vs. M. Mahesh Kumar (2015) 7
SCC
412,
the
death
occurred
on
10.10.1998 whereas the application for
grant of compassionate appointment was
filed on 30.11.1998. While that application
remained pending, the Scheme for Grant of
Compassionate
Appointment
was
withdrawn and replaced with another
scheme providing for Ex-gratia payment,
in the year 2005. After considering the
earlier law laid down by it, a two judge
bench of the Supreme Court reached the
8 All. Oriental Insurance Co. Ltd., Moradabad Vs. Smt. Priyanka Agarwal
231
conclusion that the case of the claimant (in
that case) could not be dealt with in terms
of the subsequent scheme. It required that
claim to be reconsidered in accordance
with the scheme that was in existence on
the date of occurrence of death and also on
the date of claim being made.

17. Then, in Indian Bank and Others
Vs. Promila and Another (2020) 2 SCC 729,
the death occurred on 15.1.2004 whereas the
application
for
grant
of
compassionate
appointment was made on 24.1.2004. The
scheme for grant of compassionate appointment
was introduced on 27.4.2004 i.e., after the
occurrence of death and filing of the claim
petition. Following Canara Bank (supra), a
two judge bench of the Supreme Court held, the
claim would be determined in accordance with
the scheme that was existing on the date of
occurrence of death and filing of the claim
petition.

18. Later, in N.C. Santosh Vs. State of
Karnataka and Others (2020) 7 SCC 617,
a three judge bench of the Supreme Court
considered, amongst others, the earlier
decisions of that Court in State Bank of
India Vs. Raj Kumar (supra), MGB
Gramin Bank Vs. Chakrawarti Singh
(supra) as also Canara Bank and Another
Vs. M. Mahesh Kumar (supra). In that case,
death had occurred on 25.1.1998, application
for grant of compassionate appointment was
made on 29.6.2000 whereas the rule
providing for compassionate appointment
stood amended w.e.f. 01.4.1999 thereby
taking away the enabling provision to grant
compassionate appointment. Nevertheless,
appointment was granted on 25.8.2000. It
was later withdrawn on 04.11.2003. It was
observed as below:

"19. Applying the law governing
compassionate appointment culled out from
the above cited judgments, our opinion on
the point at issue is that the norms,
prevailing on the date of consideration of
the application, should be the basis for
consideration of claim for compassionate
appointment. A dependent of a government
employee, in the absence of any vested
right accruing on the death of the
government employee, can only demand
consideration of his/her application. He is
however disentitled to seek consideration in
accordance with the norms as applicable,
on the day of death of the government
employee."

19. Later in State of Madhya
Pradesh Vs. Amit Shrivas (2020) 10 SCC
496, another three judge bench of the
Supreme Court again had the occasion to
consider the claim for compassionate
appointment. In that case, the death
occurred on 11.12.2009 whereas the
scheme
for
grant
of
compassionate
appointment was made under policy dated
18.8.2008. It was rejected on 19.8.2010. It
was found that the policy did not provide
for grant of compassionate appointment to
a work charge/contingency fund daily wage
employee. Following Indian Bank and
Others Vs. Promila and Another (supra),
it was observed that the scheme in force, on
the date of occurrence of death would be
decisive to the claim. Later, in State of
Madhya Pradesh and Others Vs. Ashish
Awasthi and connected matters (2022)2
SCC 157, that view was reiterated by a two
judge bench decision of the Supreme Court.

20. Still later in Secretary to
Government Department of Education
(Primary) and Others Vs. Bhemesh alias
Bheemappa 2021 SCC OnLine 1264, a
two judge bench of the Supreme Court
chose to consider the entire gamut of law
laid down by the Supreme Court and
232 INDIAN LAW REPORTS ALLAHABAD SERIES
thereafter interpreted its earlier three judge
bench decision in N.C. Santosh Vs. State
of Karnataka (supra) and the other
existing
law
to
only
mean
that
compassionate appointment would remain
an exception to the rule of equality in
employment and that wherever, either
under the unamended scheme or an
amended law that equality was sought to be
restored by taking away the right to grant
of compassionate appointment, the Courts
would enforce the law in favour of equality
and against the exception made to it,
whether prior or after the death of the
employee. Paragraph-17 of the report reads
as below:

"17. Keeping the above in mind,
if we critically analyse the way in which
this Court has proceeded to interpret the
applicability of a new or modified Scheme
that comes into force after the death of the
employee, we may notice an interesting
feature. In cases where the benefit under
the existing Scheme was taken away or
substituted with a lesser benefit, this Court
directed the application of the new Scheme.
But in cases where the benefits under an
existing Scheme were enlarged by a
modified Scheme after the death of the
employee, this Court applied only the
Scheme that was in force on the date of
death
of
the
employee.
This
is
fundamentally
due
to
the
fact
that
compassionate appointment was always
considered to be an exception to the normal
method of recruitment and perhaps looked
down upon with lesser compassion for the
individual and greater concern for the rule
of law."

21. Once, the Supreme Court itself
clarifies the law laid down by it, whether
by speaking through a bench of two judges
of that Court or three judges, it leaves very
little or no space to reason to the High
Court to itself explore the correct law. Any
reasoning that the High Court may express
as to the correct/true law laid down by the
Supreme Court, it would remain academic
as in the scheme of the Constitution it
would not cross swords with the further
opinion of the Supreme Court, as to the law
to be applied, pending the reference made
to a larger bench of the Supreme Court in
Ajay Hasia Vs. Khauid Mujib Sehravardi
(1981) 1 SCC 722 and R.K. Garg Vs.
Union of India and others (1981) 4 SCC
675. That is the effect caused by a twojudge bench of the Supreme Court in
Bhemesh alias Bheemappa (supra).

22. Recently a coordinate bench of
this Court was faced with a similar
dilemma in State of U.P. and 3 Others Vs.
Himanshu Yadav (Special Appeal No.
126 of 2023, decided on 07.7.2023),
followed the dictum of the Supreme Court
in Secretary to Government Department
of Education (Primary) and Others Vs.
Bhemesh
alias
Bheemappa
(supra).
Paragraph-43 of the said judgment reads as
below:

"43. Considering the principles
laid down in N.C. Santhosh (supra) and
the discussion made in Bheemesh Alias
Bheemappa (supra) as noted above, it is
more than evident that existing benefits in a
scheme for compassionate appointment, if
diluted or taken away by the amended
scheme, cannot be applied on any pending
application after modification of the
scheme. However, in case the benefits
under the modified scheme are larger than
the existing scheme prevailing on the date
of death of the employee or on the date of
moving of the application, such benefits
cannot be granted to the dependent of a
deceased employee, inasmuch as, the
8 All. Khushnuda Parveen Vs. State of U.P. & Ors.
233
scheme of compassionate appointment is
applied in perspective manner and no
retrospective effect can be given for the
purposes of consideration of even pending
claim of a dependent of a deceased."

23. We are also aware that the
reference made to Larger Bench of the
Supreme Court in State Bank of India
Vs. Sheo Shankar Tewari is still
pending before that Court. However, in
view of the discussion made above as to
the law laid down by the Supreme Court,
since the occurrence of that reference
vide order dated 08.02.2012 we do not
find any doubt exists as to the law to be
applied in matters of compassionate
appointments, in the meanwhile. For that
reason as well, since on the date of
occurrence of death of Sri Surendra
Kumar Agrawal, on 06.9.2014, there did
not exist any scheme for grant of
compassionate appointment, the claim
made by the petitioner would fail.

24. The order of the learned single
judge is set aside. Consequentially the
appeal is allowed.

25. Since there is no other dispute
surviving, the writ petition itself shall
stand disposed of with the observation that
the appellant-respondent shall pay out the
amount of Ex-gratia payment to the
respondent-petitioner within 30 days from
today.
----------
(2023) 8 ILRA 233
APPELLATE JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.08.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J

Special Appeal Defective No. 589 of 2018
with other connected cases

Khushnuda Parveen ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Virendra Singh

Counsel for the Respondents:
C.S.C., Meenakshi Parihar Singh, Prashant
Kumar Singh, Raj Kr Singh Suryavanshi

Appointment-Claim
under
Scheduled
Caste Category-Marriage with SC MaleWhether sufficient to claim SC statusHeld-No.
Appointment of appellant on the post of
Lecturer (Urdu) challenged as obtained on the
basis of Scheduled Caste certificate. Appellant,
originally
belonging
to
General
Category,
obtained SC status through marriage with a
Scheduled Caste male. Held, such voluntary
mobility into a reserved category by marriage is
not permissible under law. Once appointment is
held to be void ab initio, no question of seniority
or consequential relief arises.The appellant
cannot claim Scheduled Caste status solely on
the basis of her marriage. Her appointment as
Lecturer under SC quota is void, having been
secured
through
misrepresentation.
Consequently, her claim to seniority and post of
ad hoc Principal rightly denied.

List of Cases cited:

1. Valsamma Paul Vs Cochin University, (1996)
3 SCC 545

2. Sobha Hymavathi Devi Vs Setti Gangadhara
Swamy, (2005) 2 SCC 244

3. N.E. Horo Vs Jahan Ara Jaipal Singh, AIR
1972 SC 1840

4. Dr. Asha Saxena Vs Smt. S.K. Chaudhary,
(1991) 17 ALR 267

5. M.A. Murthy Vs St. of Karn., (2003) 7 SCC
517