# Qureshi v. Commissioner of Police

- **Citation:** (2001) 1 ILRA 113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2000-02-24
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/qureshi-v-commissioner-of-police-39571
- **Pages:** 6

## Text

1All] Manoj Kumar Garg V. State of U.P. & another
113
Kamlesh Kumar Ishwardas Patel's case
(supra). It is not open to this Court to say
that the Hon'ble Supreme Court in State
of Maharashtra Vs. Santosh Shankar
Acharya's case (supra) misinterpreted the
earlier decision of the Constitution Bench
of the Hon'ble Supreme Court in Kamlesh
Kumar Ishwardas Patel's case (supra).

5. Learned Government counsel has
also relied on the decision of Hon'ble
Supreme Court in Amin Mohammed
Qureshi Vs. Commissioner of Police,
Greater Bombay, (1994)2 SCC 355. This
decision, no doubt, is of a two Judge
Bench of Hon'ble Supreme Court but it
was subsequently followed by the five
Judge
Bench
in
Kamlesh
Kumar
Ishwardas Patel's case (supra). Learned
Government
counsel
also
relied
on
1994(2) SCC 337 (para-17).

6. However, in view of the latest
decision of the Hon'ble Supreme Court in
State of Maharashtra Vs. Santosh Shankar
Acharya's case (supra), we are bound to
follow the latest decision of the Hon'ble
Supreme Court. In fact this decision has
been followed by a Division Bench of this
Court in Nawab Dulha Vs. Union of India
in Habeas Corpus Writ Petition No.27252
of 2000 delivered on 20.9.2000.

7. Following the said decision, this
petition
is
allowed.
The
impugned
detention
order
dated
24.2.2000
is
quashed. The petitioner shall be released
forthwith unless he is not wanted in some
other criminal or preventive detention
case.

8. Learned Government counsel
prayed for leave to appeal to the Supreme
Court. In our opinion since the point
involved is covered by the Supreme Court
decision in State of Maharashtra and
others Vs. Santosh Shanker Acharya's
case leave is refused.. A copy of this
Judgment shall be supplied by tomorrow
to learned counsels for the parties on
payment of usual charges.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$'
'$7(' $//$+$%$'
%()25(
%()25(
7+( +21·%/( 9 0 6$+$, -
7+( +21·%/( 9 0 6$+$, -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

0DQRM .XPDU *DUJ
«3HWLWLRQHU
9HUVXV
6WDWH RI 83 DQG DQRWKHU «5HVSRQGHQWV

&RXQVHO IRU WKH 3HWLWLRQHU
6KUL $ZDGK 1DUDLQ 5DL
&RXQVHO IRU WKH 5HVSRQGHQW
6&

8WWDU
3UDGHVK
5HFUXLWPHQW
RI
'HSHQGHQWV
RI
*RYHUQPHQW
6HUYDQW
'\LQJ LQ +DUQHVV WK $PHQGPHQW 5XOHV
5XOH

&RPSDVVLRQDWH
$SSRLQWPHQW3HWLWLRQHU¶V IDWKHU ZRUNLQJ
DV $VVLVWDQW 7HDFKHU LQ DLGHG -XQLRU +LJK
6FKRRO GLHG LQ KDUQHVV RQ ZKHQ
WKH 3HWLWLRQHUV ZDV \HDUV ROG +H
SDVVHG +LJK 6FKRRO LQ WKH \HDU
,QWHUPHGLDWH H[DPLQDWLRQ LQ WKH \HDU
DSSOLHG
IRU
DSSRLQWPHQW
RQ
DPHQGHG SURYLVLRQV RI 5XOH
SURYLGLQJ
ILYH
\HDU
SHULRG
WR
FODLP
DSSRLQWPHQW ± TXLWH UHDVRQDEOH ± QRW
HQWLWOHG IRU DQ\ UHOLHI
+HOG ±
7KH 6WDWH *RYHUQPHQW FRQVLGHUHG LW DQG
DPHQGHG UXOH RI WKH UXOHV LQ 5XOH
 LLL IL[HG D SHULRG RI ILYH \HDUV
IURP
WKH
GDWH
RI
GHDWK
RI
WKH
JRYHUQPHQW
VHUYDQW
ZLWKLQ
ZKLFK
DQ
DSSOLFDWLRQ KDV WR EH PDGH E\ WKH SHUVRQ
114 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
ZKR FODLPV DSSRLQWPHQW ,Q P\ RSLQLRQ
WKLV LV D UHDVRQDEOH SHULRG GXULQJ ZKLFK
DSSRLQWPHQW FRXOG EH FODLPHG 3DUD
&DVH ODZ GLVFXVVHG
 (6&
 (6&
 6&&
 (6&
 6&& 6/5
 )/5

By the Court

1. Petitioner was born 2.1.1975. His
father was working since 1.7.1974 as
Assistant Teacher in aided institution
Dayanand Vedic Vidyalaya Junior High
School, Shamli, District Muzaffarnagar.
He was a permanent assistant teacher. He
died in harness on 19.11.1989. At the time
of his father's death petitioner was a
minor of about 14 years. No one in the
family was qualified to claim appointment
in 1989. The petitioner passed his high
school and intermediate examinations in
1991 and 1995. He after attaining the age
of majority and qualification for the post
of clerk claimed appointment under the
Dying in Harness Rules and applied on
31.5.2000. His claim has been rejected by
District Basic Education Officer (in brief
BSA) by order dated 7.6.2000. It is this
order dated 7.6.2000 which has been
challenged in this writ petition.

2. Sri Awadh Narain Rai, learned
counsel for the petitioner has urged that
father of the petitioner died when the
petitioner was a minor aged 14 years. He
applied for appointment after becoming
major. The BSA committed an error in
rejecting the claim of the petitioner. He
placed reliance on a decision of this court
in Manoj Kumar Saxena Vs. District
Magistrate, Bareilly and others 2000 (2)
ESC 967.
3. On the other hand learned
Standing Counsel has urged that the
petitioner is claiming appointment under
Dying in Harness Rules after more than
ten years of his father's death which is not
permissible. The petitioner cannot be
appointed. He further urged that order
passed by BSA is not liable to be
interfered with.

4. The first question that arises for
consideration is whether under the Dying
in Harness Rules, a person who was a
minor at the time of his father's death,
could claim appointment subsequently
after becoming major. Appointment under
the Dying in Harness is provided for
granting relief to the family whose sole
breadwinner had died for meeting the
immediate exigency in family of the
deceased. Mere death of an employee in
harness does not entitle a family to
employment as of right, irrespective of
financial condition of the family of the
deceased. Nor a right is created in the
dependent of the deceased to claim
appointment at any point of time. A
division bench of this court in Mohd.
Danish Siddqui v. State of U.P. and others
2000 (1) ESC 692 after considering
decisions of the apex court and this court
has held that appointment under the
Dying in Harness Rules cannot be given
unless there is material on record that the
family of the deceased was facing any
undue hardship. In the affidavit filed by
the mother, brother and sister of petitioner
before the BSA, it has been stated that
they have no objection if the petitioner is
appointed. In paragraph 9 of the writ
petition it has been stated that the
petitioner's family is very poor and after
the death of father entire family has been
suffering and is in crisis economically.
Apart from pension received by the
1All] Manoj Kumar Garg V. State of U.P. & another
115
mother, there is no other income. No
material has been furnished in support of
these allegations. The apex court in
Umesh Kumar Nagpal v. State of Haryana
and others (1994) 4 SCC 138 has laid
down as under:-

"...compassionate appointment, cannot be
granted after a lapse of a reasonable
period which must be specified in the
rules. The consideration for such an
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 death of the sole bread
winner, the compassionate employment
cannot be claimed and offered whatever
the lapse of time and after the crisis is
over."

5. If the family of the deceased had
been
in
financial crisis, petitioner's
mother could have claimed appointment
on a class-IV post to meet the immediate
exigency in the family. She could have
claimed relaxation in qualification or age.
But she did not claim appointment as
provided by government order dated
23.9.1981. The family of the deceased
survived for more than ten years. For ten
years there was no financial exigency in
the family. Petitioner passed high School
examination in 1991. He became major
on 2.1.1993. But he did not claim
appointment.
He
passed
intermediate
examination in 1995. He again did not
claim appointment. In his application
dated 31.5.2000, he has stated, that he
claimed appointment with the respondents
several times but no material has been
filed to support this assertion. Therefore,
it is reasonable to assume that the
petitioner claimed appointment under the
Dying in Harness Rules on 31.5.2000,
more than seven years after becoming
major. The application of the petitioner
has been rejected on 7.6.2000.

6. The question that arises is
whether
the
petitioner
could
claim
appointment after he attained majority.
The
decision
Pushpendra
Singh
v.
Regional Manager U.P.S.R.T.C. Aligarh
and others 2000 (1) ESC 448 was the
basis on which decisions in Manoj Kumar
Saxena (supra) and Sanjay Kashyap v.
Chief Medical Officer, Mahrajganj and
others Special Appeal No.28 of 2000
decided on 17.1.2000 were given. In these
decisions
direction
were
issued
for
considering
the
application
for
compassionate appointment. In Jagdish
Prasad v. State of Bihar and another
(1996) 1 SCC 301 [1996 (1) SLR 7] the
apex court laid down:-

" It is contended for the appellant that
since the appellant was minor; when his
father died in harness, the compassionate
circumstances continue to subsist even till
date and that, therefore, the court is
required
to
examine
whether
the
appointment
should
be
made
on
compassionate grounds. We are afraid, we
cannot accede to the contention. The very
object of appointment of a dependent of
the deceased employee who die in harness
is
to
relieve
unexpected
immediate
hardship and distress caused to the family
by sudden demise of the earning member
of the family. Since the death occurred
way back in 1971, in which year, the
applicant was four years old, it cannot be
said that he is entitled to be appointed
after he attained majority long thereafter.
In other words, if that contention is
accepted, it amounts to another mode of
recruitment of the dependent of the
deceased
Government
servant
which
116 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
cannot be encouraged, de hors the
recruitment rules."

7. The apex court in Sanjay Kumar
v. State of Bihar 2000 (87) FLR 132
considered the case of a minor who was
ten years old when his mother, an excise
constable died on 10.12.1988. Soon after
his mother's death during minority he
applied for compassionate appointment.
His
application
was
rejected
on
10.12.1996 as time barred. On 26.12.1996
he moved a fresh application which was
also rejected on 21.4.1997 as time barred.
The court held that on the date first
application was made he was a minor and
was not eligible for appointment. The
court held:-

"There cannot be reservation of a vacancy
till such time, as the petitioner becomes a
major after a number of years, unless
there are some specific provisions. The
very basis of compassionate appointment
is to see that the family gets immediate
relief."

8. The law is clear that in absence of
any specific provisions the minor who
becomes major after a number of years
cannot claim appointment. Father of
petitioner died in 1989. Petitioner became
major in 1993. He did not claim
appointment for about seven years after
becoming
major.
The
plea
of
compassionate appointment is not to
enable the family to tide over the sudden
crises or distress that took place in 1989.
The family had pulled on for nearly ten
years without any difficulty. Poverty is
one thing and immediate financial crises
is another. No rule has been pointed out
which provides for the minor to claim
appointment after he becomes major. The
vacancy of the deceased could not be
treated to be reserved for his dependant
beyond a reasonable period.

9. The learned counsel for the
petitioner urged that the application for
appointment under the Dying in Harness
Rules is liable to be considered as the
petitioner's family is poor and in financial
crises. He relied on proviso to rule 5 of
the
Uttar
Pradesh
Recruitment
of
Dependants
of
Government
Servants
Dying in Harness Rules 1974. This rule
was
amended
on
13.10.1993
Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
(Third Amendment) Rules, 1993 by
which Rule 5 was substituted. Another
amendment has been made by Uttar
Pradesh Recruitment of Dependants of
Government Servants Dying in Harness
(Fifth
Amendment)
Rules, 1999 on
20.1.1999 by which Rule 5 had been
substituted (in brief rules). Rule 5 is
extracted below :-
" 5.Recruitment of a member of the family
of the deceased-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
1All] Manoj Kumar Garg V. State of U.P. & another
117
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
for
as
possible,
such
an
employment should be given in the same
department
in
which
the
deceased
government servant was employed prior
to his death."

10. Appointments in public service
should be made by an open invitation on
merit,
from
the
open
market.
An
exception to this rule has been provided in
Dying in Harness Rules to provide
immediate
relief
to
the
family
of
government employee who dies during
service on humanitarian considerations.
Compassionate appointment is intended to
enable
the
family
of the deceased
employee to tide over the sudden crisis
resulting due to death of the bread-earner
who had left the family in penury and
without any means of livelihood. The
apex court has held that appointment on
compassionate ground could be claimed
within a reasonable period. What should
be a reasonable period within which
compassionate
appointment
could
be
claimed?
The
State
Government
considered it and amended rule 5 of the
rules in 1999. Rule 5 (1) (iii) fixed a
period of five years from the date of death
of the government servant within which
an application has to be made by the
person who claims appointment. In my
opinion, this is a reasonable period during
which appointment could be claimed.

11.

Learned counsel for the
petitioner vehemently argued that in view
of proviso to rule 5 (1) an application
could be made and the State Government
could relax the requirements of the rule.
Rule 5 (1) (iii) provides that a person has
to make the application for employment
within five years from the date of death of
the government servant. I have given my
anxious consideration to proviso to rule 5
(1). It gives power to the state government
to grant relaxation if it is satisfied that the
time limit fixed for making application
causes undue hardship in any particular
case Admittedly, the petitioner did not
approach the state government. The
question,
therefore
whether
he
was
entitled for relaxation is academic. The
learned counsel for the petitioner lastly
urged on the basis of observation made in
Pushpendra
Singh
(supra)
that
the
respondents
be
directed
to consider
petitioner's
claim
for
temporary
appointment. The observation is extracted
below :

"As a result of foregoing discussion the
appeal is bereft of merits. However, by
reason
of
reliance
upon
the
said
observation as also upon the Rule which
envisages consideration of an application
for compassionate appointment made
even after five years of the death of the
employee if the circumstances so warrant,
the appeal is disposed of post-fixed with
the observation that in case an application
118 INDIAN LAW REPORTS ALLAHABAD SERIES [2001
is moved, the respondents may reckon
with the feasibility of a temporary
appointment if the family is still reeling
under financial straits."

12. The division bench in Mohd.
Danish Siddqui (supra) has held that this
court in Pushpendra Singh (supra) did not
issue any direction to state government to
consider the claim of the petitioner. The
learned counsel for the petitioner could
not point out any such direction in
Pushpendra Singh (supra). The District
Basic Education Officer, therefore, did
not commit any error is rejecting the
application
of
the
petitioner
for
appointment under the Dying in Harness
Rules.

For the aforesaid reasons this writ
petition
fails
and
is
accordingly
dismissed.

25,*,1$/ -85,6',&7,21
25,*,1$/ -85,6',&7,21
&,9,/ 6,'(
&,9,/ 6,'(
'$7(' $//$+$%$' 129(0%(5
'$7(' $//$+$%$' 129(0%(5
%()25(
%()25(
7+( +21·%/( 3$/2. %$68 -
7+( +21·%/( 3$/2. %$68 -
7+( +21·%/( 5. '$6+ -
7+( +21·%/( 5. '$6+ -

&LYLO 0LVF :ULW 3HWLWLRQ 1R RI

8QLRQ
RI
,QGLD
WKURXJK
*HQHUDO
0DQDJHU
1RUWKHUQ
5DLOZD\
%DUDXGD
+RXVH 1HZ 'HOKL DQG DQRWKHU
«3HWLWLRQHUV
9HUVXV
9LQRG .XPDU 0DQL 7ULSDWKL DQG RWKHUV
«$SSOLFDQW
5HVSRQGHQWV
&RXQVHO IRU WKH 3HWLWLRQHU
6KUL 9LQRG .XPDU 0DQL 7ULSDWKL
6KUL $. *DXU
&RXQVHO IRU WKH 5HVSRQGHQWV
6KUL -- 0XQLU
6KUL -1 6KDUPD
6KUL 73 6LQJK
6KUL 81 6KDUPD
6&

&RQVWLWXWLRQ RI ,QGLD $UWLFOH ± 6FRSH
RI
,QWHUIHUHQFHE\
&RXUW
RI
ODZ
&KDLUPDQ
5DLOZD\
%RDUG
FDPH
WR
FRQFOXVLRQ
WKDW
GXH
WR
FRUUXSWLRQ
IDYRULWLVP DQG QHSRWLVP WKH DQVZHU
ERRN RI WRSPRVW IRXU FDQGLGDWHV DUH
WKLFNHU \HOORZLVK DQG GLIIHUHQW IURP WKH
EDWFK VLJQDWXUH RI LQYLJLODWRUV RQ WKHVH
$QVZHU VKHHW DSSHDUV WR FDQFHOOHG WKH
ZKROH H[DPLQDWLRQ LQWHUIHUHQFH E\ WKH
7ULEXQDO KHOG XQFDOOHG IRU ± ZLWKRXW
MXULVGLFWLRQ
+HOG ±
$V
VWDWHG
HDUOLHU
KH
YHULILHG
DQG
VFUXWLQL]HG WKH DQVZHU VKHHWV RI IRXU WRS
FDQGLGDWHV DQG IRU WKH UHDVRQ LQGLFDWHG
LQ WKH SUHFHGLQJ SDUDJUDSK FDPH WR KROG
WKDW WKH H[DPLQDWLRQ ZDV QRW IDLU DQG
SURSHU
,Q WKDW YLHZ RI WKH PDWWHU WKH
7ULEXQDO RXJKW QRW WR KDYH LQWHUIHUHG
ZLWK DQG UHYLHZHG WKH GHFLVLRQ RI WKH
FKDLUPDQ DV LI LW ZDV H[HUFLVLQJ WKH
SRZHU WR DSSHOODWH DXWKRULW\ SDUD
&DVH ODZ GLVFXVVHG
-7 6& ±
 $& ±
 .%
$,5 6& ±
$,5 6& ±

By the Court

1. These two writ petitions arise out
of a common judgement and order passed
by
Central
Administrative
Tribunal,
Allahabad Bench, Allahabad in Original
Applications No. 180 of 1998 and 750 of
1999. Since, common questions of law
and fact are involved in both these writ
petitions, they were heard analogously
and are disposed of by this judgement.