# Prasad v. State of U.P. and other

- **Citation:** (2010) 1 ILRA 304
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2008-11-12
- **Case number:** Civil Misc. Writ Petition No. 67881 of 2006
- **Bench:** Arun Tandon
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prasad-v-state-of-u-p-and-other-41614
- **Pages:** 4

## Headnote

Constitution
of
India,
Art.
226Compassionate
appointment-claim
of
1 All] Smt. Somawati and others V. The D.M., Bareilly and others

305
petitioner-processed by Bank by order
9.10.2004 prior to final consideration by
circular dated 4.2.2005 change of policyinstead of compassionate appointmentbank
decided
to
provide
ex-gratia
amount hence no appointment can be
made-held-circular
dated
04.02.2005
being prospective nature-can not come
in way of appointment of petitionerdirection for appointment within six
weeks issued.

Held: Para 10

This Court therefore, holds that both on
the date the application was made as
well as on the date it was finally
considered
by
the
Personnel
Administrative Department of the Bank,
the scheme as was applicable provided
for compassionate appointment. The
enforcement
of
scheme
dated
04.02.2005, which has done away with
compassionate
appointment,
has
no
application
qua
the
case
of
the
petitioner.
Case law discussed:
(2007) 2 SCC (L&S) 578 (specifically para 26),
1998 (1) ESC, 74 (S.C.).

## Text

304 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

preliminary
enquiry
report
to
the
respondent no. 5 for filing his reply to the
charge sheet and his financial and
administrative powers were ceased. The
financial and administrative powers of the
Gram Pradhan so ceased cannot be
restored unless the Pradhan is exonerated
of the charges made against him in the
final enquiry as provided by first proviso
to Section 95 (1) (g) of the Act. This
having not been done in the present case,
the impugned order restoring the financial
and administrative powers of the Gram
Pradhan cannot be sustained.

12. It is apparent that the the second
enquiry
was
conducted
without
jurisdiction with a view to confer undue
advantage upon the petitioners.

13. This court in the case of Govind
Prasad Vs. State of U.P. and other
reported in 2005 (99) R.D. 434, while
considering the same issue, held in
paragraph 9 and 10, as quoted here under:

"9. Thus, it is not open to the
District Magistrate to recall his order
ceasing the financial and administrative
powers of the Pradhan until the final
enquiry report has been obtained and the
Pradhan is exonerated of the charges
levelled against him/her.
10. In view of the aforesaid settled
legal position, the Court is satisfied that
the District Magistrate had no authority
of law to recall the order whereby the
financial and administrative powers of
the Pradhan had been ceased, so long as
final enquiry report as contemplated by
Rule 5 had not been obtained from the
nominated final Enquiry Officer and the
District Magistrate on the basis of said
enquiry report is satisfied that the
charges as levelled against the Pradhan
were not made out."

14. For the aforesaid, the impugned
order dated 22.11.2008 as well as the
enquiry report date 12.11.2008 cannot be
sustained and are liable to be set aside.

15. The writ petition is allowed. The
order dated 22.11.2008 (Annexure no. 1
to the writ petition) passed by respondent
no. 1 District Magistrate Bareilly and the
enquiry
report
dated
12.11.2008
submitted by respondent nos. 3 and 4 are
hereby quahsed.

16. The District Magistrate Bareilly
is directed to finalise the proceedings for
removal of Pradhan of Gram Sabha within
a period of one month from the date of
production of certified copy of this order
before him.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.03.2010

BEFORE
THE HON'BLE ARUN TANDON, J.

Civil Misc. Writ Petition No. 67881 of 2006

Allahabad Bank Staff Association and
others

...Petitioners
Versus
Chairman and M.D., Allahabad Bank H.O.
Kolkata and others
...Respondents

Counsel for the Petitioners:
Smt. C.K. Chaturvedi

Counsel for the Respondents:
Sri Tarun Varma
Sri Himanshu Tiwari

Constitution
of
India,
Art.
226Compassionate
appointment-claim
of
1 All] Smt. Somawati and others V. The D.M., Bareilly and others

305
petitioner-processed by Bank by order
9.10.2004 prior to final consideration by
circular dated 4.2.2005 change of policyinstead of compassionate appointmentbank
decided
to
provide
ex-gratia
amount hence no appointment can be
made-held-circular
dated
04.02.2005
being prospective nature-can not come
in way of appointment of petitionerdirection for appointment within six
weeks issued.

Held: Para 10

This Court therefore, holds that both on
the date the application was made as
well as on the date it was finally
considered
by
the
Personnel
Administrative Department of the Bank,
the scheme as was applicable provided
for compassionate appointment. The
enforcement
of
scheme
dated
04.02.2005, which has done away with
compassionate
appointment,
has
no
application
qua
the
case
of
the
petitioner.
Case law discussed:
(2007) 2 SCC (L&S) 578 (specifically para 26),
1998 (1) ESC, 74 (S.C.).

(Delivered by Hon'ble Arun Tandon, J.)

1. The applications made by the
petitioners no. 3 and 4 for compassionate
appointment in view of the death of their
father during harness while working with
Allahabad Bank have been refused
acceptance with the remark that in view
of the changed scheme of the Allahabad
Bank, only ex gratia payment is to be
provided to the dependents of an
employee dying during harness. The
petitioners may, therefore, submit their
applications
in
proper
form
for
computation of ex gratia payment. The
order dated 20.02.2006 in that regard has
been challenged by means of the present
writ petition. It has been stated that the
applications
of
the
petitioners
for
compassionate
appointment
were
processed as early as on 09.10.2004 by
the Personnel Administrative Department
at the Head Office of the Allahabad Bank.
Compassionate
appointments
were
approved under the said resolution.
However before the resolution could be
given effect to and appointment could be
offered, there was change in the Scheme
pertaining to compassionate appointment
enforced in the Bank. On 04.02.2005 a
Circular was issued by the Allahabad
Bank for providing payment of ex gratia
amount to the dependent of the employees
dying during harness. It is stated that
under the said Scheme which was become
effective from 18.12.2004, the right of
compassionate appointment has been
taken away.

2. The counsel for the petitioner
submits that Scheme is prospective in
nature and will not have the effect of
taking away the right of the petitioners for
compassionate appointment which was
approved by the Personnel Administrative
Department of the Bank in its Meeting
dated 09.10.2004. He submits that since
the Scheme is prospective in nature, the
right accrued in favour of the petitioner
under the earlier scheme will not be
adversely effected. He has placed reliance
upon the judgment of the Hon'ble
Supreme Court in the case of State Bank
of India and others vs. Jaspal Kaur,
(2007) 2 SCC (L&S) 578 (specifically
para 26), which lays down that the case of
compassionate appointment has to be
considered on the date the application was
made. He points out that on the date of
making the application and even on the
date
of
final
consideration
of
his
application
by
the
Personnel
Administrative Department of Bank in its
meeting held on 09.10.2004, the scheme
306 INDIAN LAW REPORTS ALLAHABAD SERIES [2010

providing for compassionate appointment
was in force.

3. On behalf of the respondent Bank,
it is stated that mere approval of the name
of the petitioner for compassionate
appointment will not create any right in
their favour and, therefore, if the Bank
has
decided
to
do
away
with
compassionate appointment under its
Scheme floated on 04.02.2005 which has
come into effect on 18.12.2004, no
compassionate
appointment
can
be
offered
subsequent
to
that
date
irrespective of the fact whether the
application
for
compassionate
appointment was made, processed and
approved prior to the enforcement of the
new Scheme. He submits that in view of
the judgment of the Hon'ble Supreme
Court in the case of Government of Orissa
through
Secretary
Commerce
and
Transport Department, Bhubaneshwar vs.
Haraprasad and others reported in 1998
(1) ESC, 74 (S.C.), no right is conferred
merely because of empanelment of the
candidate in the select list.

4. Counsel for the respondent bank
clarifies
in
reply
that
since
no
appointment letter was issued and in
between the scheme was altered, it cannot
be said that his claim was finally
considered
under
resolution
dated
09.10.2004.
No
appointment
on
compassionate ground can be offered
after the enforcement of scheme of 2005.

5. I have heard learned counsel for
the parties and have gone through the
records of the writ petition.

6. The issue with regard to the
consideration
of
an
application
for
compassionate appointment has been
examined by the Hon'ble Supreme Court
in the case of State Bank of India and
others vs. Jaspal Kaur (supra) and in
paragraph 26 it has been held as follows:

"26. Finally in the fact situation of
this case, Shri Sukhbir Inder Singh (late),
Record Assistant (Cash & Accounts) on 18-1999, in the Dhab Wasti Rm, Amritsar
Branch, passed away. The respondent,
widow of Shri Sukhbir Inder Singh
applied for compassionate appointment in
the appellant Bank on 5-2-2000 under the
scheme which was formulated in 2005.
The High Court also erred in deciding the
matter in favour of the respondent
applying the scheme formulated on 4-82005, when her application was made in
2000. A dispute arising in 2000 cannot be
decided on the basis of a scheme that
came into place much after the dispute
arose, in the present matter in 2005.
Therefore, the claim of the respondent
that the income of the family of the
deceased is Rs 5855 only, which is less
than 40% of the salary last drawn by late
Shri Sukhbir Inder Singh, in contradiction
to the 2005 scheme does not hold water."

7. In view of the aforesaid
conclusion drawn by the Hon'ble Supreme
Court it has to be examined in the facts of
the present case as to under which scheme
the claim of the petitioner has to be
considered. Since the application for
compassionate appointment was made by
the petitioner in the year 2002-2003 and
at the relevant point of time the scheme in
force
provided
for
compassionate
appointment, his application was liable to
be considered in accordance with the said
scheme only.

8. This Court may now deal with the
contention raised on behalf of the
1 All] Allahabad Bank Staff Association and others V. Chairman and M.D. and others

307
respondent bank to the effect that there
has been no final consideration of the
application of the petitioner till the
issuance of scheme 2005.

9. In the opinion of the Court the
contention is totally misplaced. Under the
resolution of the Personnel Administrative
Department of the Bank as per its meeting
dated 09th October, 2004 the application
of the petitioner for compassionate
appointment was allowed and he was
directed to be offered compassionate
appointment. The application of the
petitioner stood finally disposed of and
what remained was the performance of
the ministerial act of issuance of the
appointment letter.

10. This Court therefore, holds that
both on the date the application was made
as well as on the date it was finally
considered
by
the
Personnel
Administrative Department of the Bank,
the scheme as was applicable provided for
compassionate
appointment.
The
enforcement of scheme dated 04.02.2005,
which has done away with compassionate
appointment, has no application qua the
case of the petitioner.

11. The writ petition is therefore
allowed. Respondent bank is directed to
take appropriate action for appointment of
the petitioner in terms of the decision of
the Personnel Administrative Department
of the Bank dated 09.10.2004, preferably
within six weeks from the date a certified
copy of this order is filed before the
authority concerned.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 29.03.2010

BEFORE
THE HON'BLE R.K. AGRAWAL, J.
THE HON'BLE MRS. JAYASHREE TIWARI, J.

Civil Misc. Writ Petition No. 24138 of 2002

S.N. F. Alloy Private Limited ...Petitioner
Versus
State of U.P. and others ...Respondents
Counsel for the Petitioner:
Sri Dinesh Dwivedi
Sri S. Ali Murtaza

Counsel for the Respondents:
Sri Ajay Bhanot
C.S.C.

Constitution
of
India,
Art.
226-U.P.
Zamindari Abolition and Land Reform
Rules, 1952-Rules 255 and 259-Recovery
of
10%
collection
charges-held
untenable, unsustainable-except Rs.3.75
no other amount can be charged against
collection charges.

Held: Para 6

In view of the case law as referred
above,
it
is
apparently
clear
that
collection charges at the rate of 10% is
wholly
unjustifiable
and
hence
the
petition succeeds and is allowed. The
respondents are directed not to insist
payment of collection charges more than
Rs.3.75 in respect of recovery of the
amount as claimed by them in the
demand notice which is annexure 4 to
the writ petition.
Case law discussed:
1998(2) AWC 1196, writ petition No. 4307 of
1981.

(Delivered by Hon'ble Jayashree Tiwari, J.)

1. Heard learned counsel for the
petitioner and the learned Standing
Counsel for the State.

2. By virtue of present writ petition
the petitioner is challenging the order of