# Pradeep Kumar v. State of U.P. and others

- **Citation:** (2011) 2 ILRA 554
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2011-05-30
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-kumar-v-state-of-u-p-and-others-41920
- **Pages:** 10

## Headnote

Constitution
of
India,
Article
226Compassionate
Appointment-after
3
years of death-widow for the first time
applied with stipulation that she is
unable to work hence her minor son be
given appointment-son of the deceased
after completing graduation applied for
compassionate appointment-neither the
widow nor the son stated about financial
crisis-rejection on ground of delay-heldfrom
own
showing
no
financial
suppressing
need
establishedcompassionate
appointment
not
an
alternative
nor
reservation
for
appointment-not
entitled
for
appointment.

Held: Para 22 and 32

In the case in hand, after the death of
deceased employee on 18th July, 1993,
his wife took three years in informing
D.B.E.O. that she is not capable of
service and her two children are minor.
She did not refer to any factum of
suffering any hardship etc.. On the
contrary, she mentions only this much
that when her children become major,
they may be allowed to serve the
2 All] Pradeep Kumar V. State of U.P. and others
555
department. The entire application filed
as Annexure 1 to the writ petition
nowhere
mentions
anything
about
financial hardship or penury of the
family.

In the circumstances, for mere sheer
conjuncture and surmises, as argued
orally, this Court find it difficult to hold
that the impugned order is erroneous
and deserve interference.
Case law discussed:
(2010) 4 UPLBEC 2776; (2011) 1 UPLBEC 494;
1997 (11) SCC 390; 1999 (I) LLJ 539; AIR
1998 SC 2230; AIR 2000 SC 2782; AIR 2004
SC 4155; 1995 (6) SCC 436; (1996) 8 SCC 23;
1998 SC 2612; JT 2002 (3) SC 485=2002 (10)
SCC 246; AIR 2005 SC 106; AIR 2006 SC
2743; (2009) 13 SCC 122=JT 2009 (6) SC
624; 2009 (6) SCC 481; 2007 (6) SCC 162;
2011 (4) SCALE 308; 2011 (3) ADJ 91;
Nagesh Chandra Vs. Chief Engineer, Vivasthan
Ga Warg & Ors. decided on 7th January, 2011
in Special Appeal No.36 of 2011; 2011(1) ADJ
679; JT 2011 (4) SC 30s

## Text

554 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Maria Das case (supra), the writ petition
cannot be entertained. The Division
Bench judgement relied on by the
learned counsel for the petitioner in the
case of Srimati Sarita Devi (supra) does
not help the petitioner in the present
case. The said judgment is an authority
that
an
Anganbari
Workers
are
disqualified from contesting the election
of Panchayat and they are not eligible to
contest the Panchayat election, but the
said case was not a case challenging any
election, but the question which was
considered in the said case was whether
the State Election Officer has any right
to debar the Shiksha Mitra/Anganbari
Worker from contesting the Panchayat
Election and, whether the honorarium
received
by
Shiksha
Mitra
and/or
Aanganbari workers for rendering their
respective services falls within the
purview of "office of profit." There
cannot be any dispute to the propositions
as laid down in the said case. However,
the said judgment does not help the
petitioner in the present case, and it is
not an authority for the proposition to
hold that election of an elected member
of Kshettra Panchayat can be challenged
by filing a writ of quo warranto.

22. In view of the foregoing
discussion, we are satisfied that the
petitioner cannot be allowed to challenge
the election of respondent no.8, by
means of this writ petition under Article
226 of the Constitution of India.

23. The writ petition has no merit
and is dismissed.
---------

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 30.05.2011

BEFORE
THE HON'BLE SUDHIR AGARWAL,J.

Service Single no. - 5086 of 2005

Pradeep Kumar

 ...Petitioner
Versus
State
of
U.P.
Thru
Secy.
Basic
Education,Civil Sectt. and 2 others

 ...Respondents

Counsel for the Petitioner:
Sri Alok Mishra

Counsel for the Respondents:
C.S.C.
Sri Ghaus Beg

Constitution
of
India,
Article
226Compassionate
Appointment-after
3
years of death-widow for the first time
applied with stipulation that she is
unable to work hence her minor son be
given appointment-son of the deceased
after completing graduation applied for
compassionate appointment-neither the
widow nor the son stated about financial
crisis-rejection on ground of delay-heldfrom
own
showing
no
financial
suppressing
need
establishedcompassionate
appointment
not
an
alternative
nor
reservation
for
appointment-not
entitled
for
appointment.

Held: Para 22 and 32

In the case in hand, after the death of
deceased employee on 18th July, 1993,
his wife took three years in informing
D.B.E.O. that she is not capable of
service and her two children are minor.
She did not refer to any factum of
suffering any hardship etc.. On the
contrary, she mentions only this much
that when her children become major,
they may be allowed to serve the
2 All] Pradeep Kumar V. State of U.P. and others
555
department. The entire application filed
as Annexure 1 to the writ petition
nowhere
mentions
anything
about
financial hardship or penury of the
family.

In the circumstances, for mere sheer
conjuncture and surmises, as argued
orally, this Court find it difficult to hold
that the impugned order is erroneous
and deserve interference.
Case law discussed:
(2010) 4 UPLBEC 2776; (2011) 1 UPLBEC 494;
1997 (11) SCC 390; 1999 (I) LLJ 539; AIR
1998 SC 2230; AIR 2000 SC 2782; AIR 2004
SC 4155; 1995 (6) SCC 436; (1996) 8 SCC 23;
1998 SC 2612; JT 2002 (3) SC 485=2002 (10)
SCC 246; AIR 2005 SC 106; AIR 2006 SC
2743; (2009) 13 SCC 122=JT 2009 (6) SC
624; 2009 (6) SCC 481; 2007 (6) SCC 162;
2011 (4) SCALE 308; 2011 (3) ADJ 91;
Nagesh Chandra Vs. Chief Engineer, Vivasthan
Ga Warg & Ors. decided on 7th January, 2011
in Special Appeal No.36 of 2011; 2011(1) ADJ
679; JT 2011 (4) SC 30s

(Delivered by Hon'ble Sudhir Agarwal,J.)

1. Heard learned counsel for the
petitioner and perused the record.

2. The petitioner has sought
compassionate appointment, which has
been rejected by means of the impugned
order dated 23rd February, 2006 passed
by the State Government rejecting the
claim of the petitioner on the ground of
extra ordinary delay and laches and by
observing that after such a long time there
is
no
justification
for
providing
compassionate appointment. Hence this
writ petition.

3. Petitioner's father working as
Assistant Teacher died on 18th July, 1993
when the petitioner was about 11 years of
age. His mother send an application dated
09.06.1996 stating that she is not capable
of performing any job but requested
District Basic Education Officer, Unnao
(hereinafter referred to as "D.B.E.O.")
that on attaining majority, her children
may be provided such employment. The
petitioner thereafter claims to have
submitted
an
application
for
compassionate appointment on 18th July,
2001 after completing education upto
B.A. which was considered by the
authorities concerned. Ultimately, by
means of the impugned order, the same
has been rejected. Relying on Division
Bench decisions of this Court in Vivek
Yadav Vs. State of U.P. & Ors. (2010) 4
UPLBEC 2776 and Subhash Yadav Vs.
State of U.P. & Ors. (2011) 1 UPLBEC
494, the learned counsel for the petitioner
submitted that unless State Government
apply its mind to financial hardships on
the
part
of
the
family,
denying
compassionate appointment and rejection
of claim merely on the basis of delay is
not justified.

4. However, I find no force in the
submission.

5. Repeatedly, it has been held that
the purpose and object of compassionate
appointment is to enable the members of
family of the deceased employee in
penury, due to sudden demise of the sole
breadwinner, get support and succour to
sustain themselves and not to face
hardship for their bore sustenance.

6. In Managing Director, MMTC
Ltd., New Delhi and Anr. Vs. Pramoda
Dei Alias Nayak 1997 (11) SCC 390 the
Court said:

"As pointed out by this Court, the
object of compassionate appointment is to
enable the penurious family of the
deceased employee to tied over the
556 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
sudden financial crises and not to provide
employment and that mere death of an
employee does not entitle his family to
compassionate appointment."

7. In S. Mohan Vs. Government of
Tamil Nadu and Anr. 1999 (I) LLJ 539
the Supreme 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."

8. In Director of Education
(Secondary) & Anr. Vs. Pushpendra
Kumar & Ors. AIR 1998 SC 2230 the
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."

9. In Sanjay Kumar Vs. The State
of Bihar & Ors. AIR 2000 SC 2782 it
was held:

"compassionate
appointment
is
intended to enable the family of the
deceased employee to tide over sudden
crisis resulting due to death of the bread
earner who had left the family in penury
and without any means of livelihood"

10. In Punjab Nation Bank & Ors.
Vs. Ashwini Kumar Taneja AIR 2004
SC 4155, the court said:

"It is to be seen that the appointment
on compassionate ground is not a source
of recruitment but merely an exception to
the requirement regarding appointments
being made on open invitation of
application on merits. Basic intention is
that on the death of the employee
concerned his family is not deprived of
the means of livelihood. The object is to
enable the family to get over sudden
financial crisis."

11.

An
appointment
on
compassionate basis claimed after a long
time has seriously been deprecated by
Apex Court in Union of India Vs.
Bhagwan 1995 (6) SCC 436, Haryana
State Electricity Board Vs. Naresh
Tanwar, (1996) 8 SCC 23. In the later
case the Court 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
deceased-employee 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."

12. 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
2 All] Pradeep Kumar V. State of U.P. and others
557
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."

13. In Hariyana State Electricity
Board Vs. Krishna Devi JT 2002 (3) SC
485 = 2002 (10) SCC 246 the Court said:

"As the application for employment
of her son on compassionate ground was
made by the respondent after eight years
of death of her husband, we are of the
opinion that it was not to meet the
immediate financial need of the family
...."

14. In National Hydroelectric
Power Corporation & Anr. Vs. Nanak
Chand & Anr. AIR 2005 SC 106, the
Court said:

"It is to be seen that the appointment
on compassionate ground is not a source
of recruitment but merely an exception to
the requirement regarding appointments
being made on open invitation of
application on merits. Basic intention is
that on the death of the employee
concerned his family is not deprived of
the means of livelihood. The object is to
enable the family to get over sudden
financial crises."

15. In State of Jammu & Kashmir
Vs. Sajad Ahmed AIR 2006 SC 2743 the
Court said:

"Normally,
an
employment
in
Government or other public sectors
should be open to all eligible candidates
who can come forward to apply and
compete with each other. It is in
consonance with Article 14 of the
Constitution. On the basis of competitive
merits, an appointment should be made to
public office. This general rule should not
be departed except where compelling
circumstances demand, such as, death of
sole bread earner and likelihood of the
family suffering because of the set back.
Once it is proved that in spite of death of
bread earner, the family survived and
substantial period is over, there is no
necessity to say 'goodbye' to normal rule
of appointment and to show favour to one
at the cost of interests of several others
ignoring the mandate of Article 14 of the
Constitution."

16.

Following
several
earlier
authorities, in M/s Eastern Coalfields
Ltd. Vs. Anil Badyakar and others,
(2009) 13 SCC 122 = JT 2009 (6) SC
624 the Court said:

"The principles indicated above
would give a clear indication that the
compassionate appointment is not a
vested right which can be exercised at any
time
in
future.
The
compassionate
employment cannot be claimed and
offered after a lapse of time and after the
crisis is over."

17. In Santosh Kumar Dubey Vs.
State of U.P. & Ors. 2009 (6) SCC 481
the Apex Court had the occasion to
consider Rule 5 of U.P. Recruitment of
558 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
Dependents of Government Servants
Dying in harness Rules, 1974 (hereinafter
referred to as "1974 Rules") and said:

"The very concept of giving a
compassionate appointment is to tide over
the financial difficulties that is faced by
the family of the deceased due to the
death of the earning member of the
family. There is immediate loss of earning
for which the family suffers financial
hardship. The benefit is given so that the
family can tide over such financial
constraints. The request for appointment
on compassionate grounds should be
reasonable and proximate to the time of
the death of the bread earner of the
family, inasmuch as the very purpose of
giving such benefit is to make financial
help available to the family to overcome
sudden economic crisis occurring in the
family of the deceased who has died in
harness. But this, however, cannot be
another source of recruitment. This also
cannot be treated as a bonanza and also
as a right to get an appointment in
Government service."

18. The Court considered that father
of appellant Santosh Kumar Dubey
became untraceable in 1981 and for about
18 years the family could survive and
successfully faced and over came the
financial
difficulties.
In
these
circumstances it further held:

"That being the position, in our
considered opinion, this is not a fit case
for exercise of our jurisdiction. This is
also not a case where any direction could
be issued for giving the appellant a
compassionate
appointment
as
the
prevalent rules governing the subject do
not permit us for issuing any such
directions."

19. In I.G. (Karmik) and Ors. v.
Prahalad Mani Tripathi 2007 (6) SCC
162 the Court said:

"Public employment is considered to
be a wealth. It in terms of the
constitutional scheme cannot be given on
descent. When such an exception has been
carved out by this Court, the same must
be strictly complied with. Appointment on
compassionate ground is given only for
meeting the immediate hardship which is
faced by the family by reason of the death
of
the
bread
earner.
When
an
appointment is made on compassionate
ground, it should be kept confined only to
the purpose it seeks to achieve, the idea
being
not
to
provide
for
endless
compassion."

20. The importance of penury and
indigence of the family of the deceased
employee and need to provide immediate
assistance for compassionate appointment
has been considered by the Apex Court in
Union of India (UOI) & Anr. Vs. B.
Kishore 2011(4) SCALE 308. This is
relevant to make the provisions for
compassionate appointment valid and
constitutional else the same would be
violative of Articles 14 and 16 of the
Constitution of India. The Court said:

"If the element of indigence and the
need to provide immediate assistance for
relief from financial deprivation is taken
out from the scheme of compassionate
appointments, it would turn out to be
reservation in favour of the dependents of
an employee who died while in service
which would be directly in conflict with
the ideal of equality guaranteed under
Articles 14 and 16 of the Constitution."
2 All] Pradeep Kumar V. State of U.P. and others
559

21. It is thus clear that rule of
compassionate appointment has an object
to give relief against destitution. It is not a
provision
to
provide
alternate
employment
or
an
appointment
commensurate with the post held by the
deceased employee. It is not by way of
giving similarly placed life to the
dependents of the deceased. While
considering the provision pertaining to
relaxation under 1974 Rules, the very
object of compassionate appointment
cannot be ignored. This is what has been
reiterated by a Division Bench of this
Court in Smt. Madhulika Pathak Vs.
State of U.P. & ors. 2011 (3) ADJ 91.
The decision in Vivek Yadav (supra) has
been considered later on by another
Division Bench in Nagesh Chandra Vs.
Chief Engineer, Vivasthan Ga Warg &
Ors. decided on 7th January, 2011 in
Special Appeal No.36 of 2011 and
Court said:

"Though in the judgment it has been
held that when the rules are prevailing for
relaxation for making the application, a
member of the family, on attaining
majority, can file an application for due
consideration but in the judgment itself it
has been held that the law relating to
compassionate appointment is no longer
res integra. The right of compassionate
appointment does not confer a right but it
does
give
rise
to
the
legitimate
expectation in a person covered by the
rules that his application should be
considered, if otherwise he meets with the
requirement."

22. In the case in hand, after the
death of deceased employee on 18th July,
1993, his wife took three years in
informing D.B.E.O. that she is not
capable of service and her two children
are minor. She did not refer to any factum
of suffering any hardship etc.. On the
contrary, she mentions only this much
that when her children become major,
they may be allowed to serve the
department. The entire application filed as
Annexure 1 to the writ petition nowhere
mentions
anything
about
financial
hardship or penury of the family.

23. The petitioner Pradeep Kumar
having his date of birth as 30.07.1982
passed
High
School
in
1996
and
Intermediate in 1998. He passed out B.A.
(Final) in 2001 from D.S.M. College
Unnao affiliated to Chhatrapati Sahuji
Maharaj
University,
Kanpur.
The
application submitted by him on 18th
July, 2001 neither mentions nor there is
even a whisper about the existence or
continued financial crisis or penury of the
family though application was made after
eight years. It only mentions that now he
has passed B.A. (Final) and therefore, be
appointed on compassionate basis in the
quota meant for such appointment. It
shows that he had an assumption that
there is a specific quota meant for
appointment and he has a vested right to
get appointment thereagainst.

24. The D.B.E.O. vide letter dated
31st August, 2001 informed the petitioner
that his application was not on the
prescribed format and it has several
discrepancies. Besides, application having
been submitted after five years from the
date of death, it ought to be addressed to
the Secretary, U.P. Basic Education
Board,
Allahabad.
It
is
said
that
formalities
were
completed
and
application was submitted thereafter by
the petitioner on 4th September, 2001.
Since no action was taken, a legal notice
dated 24.12.2004 was served upon the
560 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
respondents. In the entire notice dated
24.12.2004 there is only one sentence that
financial condition of the client of
noticee's counsel was very bad and the
family is at the verge of starvation.
Nothing said as to how and in what
manner petitioner's family was suffering
financial hardship though getting family
pension etc.

25. After petitioner's application was
rejected by the impugned order dated 23rd
February, 2006, he got his writ petition
amended by adding paragraphs 14-A to
14-F wherein he has only referred to
power of relaxation with respect to the
period of five years but nothing has been
said about penurious condition of the
family and continued financial scarcity
for such a long time during which he
obtained his education and the family
could sustain all difficulties. In the writ
petition there is only one paragraph i.e.
para 13 that the whole family of the
deceased is on the verge of starvation as
there is no earning member of the family
and it is very difficult for them to mitigate
hardship accrued due to the death of the
deceased. Nothing has been said as to
how and in what manner the family has
maintained itself in the last eight years
simultaneously providing education upto
graduation to the petitioner also.

26. Learned counsel for the
petitioner submitted that his application
has been dismissed only on the ground of
the fact that the application is submitted
after five years. But this fact is also not
correct, inasmuch as, in the impugned
order, Secretary, Basic Education Board,
has clearly observed that no material was
supplied by the petitioner for considering
the question of grant of relaxation in
favour of the petitioner.

27. Before this Court also, the
petitioner has not placed any such
material. In a case where no such material
is
provided
by
a
person
seeking
compassionate appointment after a long
time, it cannot be said that respondents
have exercised their power in a wholly
illegal manner.

28. A similar contention has been
examined by a Division Bench of this
Court recently in Om Prakash Pandey
Vs. State of U.P. 2011 (1) ADJ 679
wherein after referring to the decision in
Vivek Yadav (supra), the Court said :

"We have no quarrel with the
proposition that when the relevant rule
gives
the
scope
of
relaxation
or
dispensation of the period of five years, it
cannot be rejected merely on the basis of
the fact that the application was beyond
the prescribed time. Similarly, each and
every case has its own ground of
acceptance or rejection. Facts vary from
case to case. In the instant case, save and
except the ground that the Appellant-writ
Petitioner was not in a position to make
the application in time since he was
minor, no other ground is available from
the order of the authority. Though there is
a format/proforma for making application
beyond the period giving details of landed
properties, bank account/s and other
relevant
materials
and
though
the
Appellant-writ Petitioner has said that he
has made the application but from the
annexure we find that proforma is totally
unfilled. No cause of any continuance of
suffering or hardship has been indicated.
In such circumstances, the rejection as
made by the authority seems to be valid.
Moreover, the widow of the deceased,
even having no proper qualification, had
not made any application before the
2 All] Pradeep Kumar V. State of U.P. and others
561
authority concerned for her appointment
even in the lowest grade to meet the
immediate need of the family. Therefore,
the grounds, which have been taken by the
Appellant herein, are vague in nature.
Had it been the case of non-consideration
of cause or of rejection without basis, the
appellate Court would have interfered
with it by sitting in a Court of Appeal,
arising out of writ jurisdiction under
Article 226 of the Constitution of India.
But we cannot go into the reason of the
reasonableness of rejection like regular
Appellate Court."

29. In this case also the only
application placed on record shows that
petitioner having completed B.A. (Final)
had sought appointment and nothing more
than that. The format, in which he has
alleged to have been applied, is not on
record, in order to show that he has placed
relevant material before the authority
concerned justifying relaxation of the
period of five years. The competent
authority, in the impugned order, has
clearly observed that no ground was made
out by petitioner for relaxation. None has
been disclosed in the entire writ petition.

30. In Vivek Yadav (supra) and
Subhash Yadav (supra) the Court has
clearly held that application was rejected
only on the ground that it was moved after
five years and it did not appear from the
order challenged those cases that the
authority concerned applied its mind on
the
question,
whether
the
situation
warrants relaxation or not. But that is not
the case in hand. In the case in hand, the
authority concerned has addressed itself
to this aspect of the matter also and has
found that no ground for relaxation has
been
made
out
by
the
petitioner.
Challenging the said order, this finding
recorded by respondent No.2 in the
impugned order has not been shown to be
perverse
or
contrary
to
record
as
discussed above.

31. In Local Administration
Department
and
Anr.
v.
M.
Selvanayagam @ Kumaravelu JT 2011
(4) SC 30, Apex Court considered almost
a similar case arising out of a judgment of
the
Madras
High
Court.
One
Meenakshisundaram, a Watchman in
Karaikal Municipality died on 22nd
November, 1988 leaving behind a widow
and two sons, one of whom was eleven
years old at that time. The widow was
thirty-nine years of age but immediately
did not make any application for
compassionate appointment. On 29th
July, 1993, after about four and a half
years and odd, she made an application
for compassionate appointment of M.
Selvanayagam @ Kumaravelu since he
had passed S.S.L.C. Examination in April,
1993. However, the appointment could
not
have
been
granted
since
M.
Selvanayagam @ Kumaravelu was minor
at that time also. Another application
thereafter was given after 7 years and 6
months from the date of death of
Meenakshisundaram. Having receipt no
reply, a writ petition was filed which was
disposed of directing the Municipality to
pass an order on the application for
compassionate appointment. The claim
for compassionate appointment ultimately
rejected by the Municipality by order
dated 19th April, 2000. The writ petition
against the said order was dismissed by
the learned Single Judge but in intra-court
appeal, it was allowed vide judgment and
order dated 30th April, 2004 and the
Municipality was directed to provide
compassionate appointment. It is this
order, which was assailed before the Apex
Court. The Municipality declined to give
562 INDIAN LAW REPORTS ALLAHABAD SERIES [2011
compassionate
appointment
observing
that wife of the deceased employee did
not make any request immediately after
the death for compassionate appointment
which shows that she was not facing any
financial crisis in the family at that time.
This reasoning was negatived by the
Division Bench of the High Court but the
Apex Court did not approve the judgment
of the High Court and said:

"....there is a far more basic flaw in
the view taken by the Division Bench in
that it is completely divorced from the
object and purpose of the scheme of
compassionate appointments. It has been
said a number of times earlier but it needs
to be recalled here that under the scheme
of compassionate appointment, in case of
an employee dying in harness one of his
eligible dependents is given a job with the
sole objective to provide immediate
succor to the family which may suddenly
find itself in dire straits as a result of the
death
of
the
bread
winner.
An
appointment made many years after the
death of the employee or without due
consideration of the financial resources
available to his/her dependents and the
financial deprivation caused to the
dependents as a result of his death, simply
because the claimant happened to be one
of the dependents of the deceased
employee would be directly in conflict
with Articles 14 & 16 of the Constitution
and hence, quite bad and illegal. In
dealing with cases of compassionate
appointment, it is imperative to keep this
vital aspect in mind.

8. Ideally, the appointment on
compassionate basis should be made
without any loss of time but having regard
to the delays in the administrative process
and several other relevant factors such as
the number of already pending claims
under the scheme and availability of
vacancies etc. normally the appointment
may come after several months or even
after two to three years. It is not our
intent, nor it is possible to lay down a
rigid time limit within which appointment
on compassionate grounds must be made
but what needs to be emphasized is that
such an appointment must have some
bearing on the object of the scheme.

9. In this case the Respondent was
only 11 years old at the time of the death
of his father. The first application for his
appointment was made on July 2, 1993,
even while he was a minor. Another
application was made on his behalf on
attaining majority after 7 years and 6
months of his father's death. In such a
case, the appointment cannot be said to
sub-serve the basic object and purpose of
the scheme. It would rather appear that on
attaining majority he staked his claim on
the basis that his father was an employee
of the Municipality and he had died while
in service. In the facts of the case, the
municipal authorities were clearly right in
holding that with whatever difficulty, the
family of Meenakshisundaram had been
able to tide over the first impact of his
death. That being the position, the case of
the Respondent did not come under the
scheme of compassionate appointments."

32. In the circumstances, for mere
sheer conjuncture and surmises, as argued
orally, this Court find it difficult to hold
that the impugned order is erroneous and
deserve interference.

33. The writ petition therefore lacks
merit. Dismissed.
2 All] Anil Kumar Jaiswal V. State of U.P. and others
563

34. Interim order, if any, stands
vacated.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHAHAD 10.05.2011

BEFORE
THE HON'BLE AMAR SARAN,J.
THE HON'BLE S.C. AGARWAL,J.

Criminal Misc. Writ Petition No. - 8266 of 2011

Anil Kumar Jaiswal

 ...Petitioner
Versus
State of U.P. and others ...Respondent

Counsel for the Petitioner:
Sri Arvind Kumar Singh II
Sri K.K. Singh

Counsel for the Respondent:
Govt. Advocate

U.P. Gangster and Anti Social Activities
(Prevention) Act 1986-Section 17-by show
cause notice property acquired as result of
commission of offence-matter referred to
competent court for trail-it is for trail court
to
be
consider-whether
the
property
should be confiscated or released-not for
writ court-petition dismissed.

Held: Para 9

For all these reasons, as the matter has
now been referred to the Special Judge, it
is for the Special Judge to consider the
matter on merits whether the property is
to be confiscated or released.
Case law discussed:
Smt. Kahkashan Parveen Vs. State of UP,1999
(39) 719; 2003 AIR SCW 2458; 2009 (1) ALJ
556; AIR 1981, SC 1363;

(Delivered by Hon'ble Amar Saran,J.)

1. Heard learned counsel for the
petitioner
and
learned
Additional
Government Advocate.

2. This writ petition has been filed for
quashing of orders dated 30.12.2010 and
15.4.2011 passed by the District Magistrate,
Kushinagar whereby show cause notice was
issued to the petitioner and thereafter his
property was attached and the matter was
referred to the competent Court having
jurisdiction to try the offence under the
Uttar Pradesh Gangsters and Anti Social
Activities
(Prevention)
Act,
1986
(hereinafter referred to as "the Act").

3. Learned counsel for the petitioner
contended that the said proceedings were
initiated in a mala fide manner in view of a
dispute
with
one
Subhash
Chandra
Upadhyay because the latter had been
allotted a petrol pump. The petitioner had
only taken the property on lease from
respondent No. 4 Smt. Sirjawati Devi, who
was the wife of respondent No. 5 Shiv
Kumar. He further submitted that the
petitioner Anil Kumar Jaiswal and Smt.
Sirjawati Devi, wife of the alleged gangster
Shiv Kumar had made representations on
21.1.2011 before the District Magistrate,
Kushinagar, wherein they had claimed that
the property was acquired with the aid of
one Prayag, the father-in-law of Smt.
Sirjawati, who was a good carpenter and
used to do the work of furniture and
possessed a shop. He also had income from
agricultural land as he possessed 2 acres of
good
agricultural
land.
The
District
Magistrate rejected this contention as the
petitioner and Smt. Sirjawati Devi were
unable to substantiate the income from
other sources by any documentary or other
evidence.

4. Admittedly, Shiv Kumar was facing
prosecution in case crime No. 612 of 2007,
under sections 41/411, 403, 413, 414, 419,
420, 467, 468 and 471 IPC and 3(1) of the
Gangsters Act, P.S. Patherwa and case