# Raj Kumar Jaiswal / v. Punjab National Bank and others

- **Citation:** (2006) 2 ILRA 775
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-09-30
- **Case number:** Special Appeal No.1153 of 2005
- **Bench:** Ajoy Nath Ray, C.J. Ashok Bhushan
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-jaiswal-v-punjab-national-bank-and-others-40598
- **Pages:** 10

## Headnote

Constitution of India, Art. 14 and 16Compassionate
appointment-whether
the provisions of Dying in Harness Rules
are violative of Act 14 and 16 of the
Constitution? Held-'No'

Held: Para 19 and 21

The conclusion is irresistible that the
compassionate appointment itself cannot
be held to be violative of Articles 14 and
16 of the Constitution.

In view of the foregoing discussions,
with respect, we are unable to approve
the observations of the learned Single
Judge in Ram Pratap Singh's case
(supra){in paragraph 69 (ii)} that the
Dying in Harness Rules do not stand the
test of valid classification and are hit by
Articles 14 and 16 of the Constitution of
India, the above observations do not lay
down the correct law.

Important Note-Ram Pratap Singh Vs.
State of U.P. and others reported in 2004
(4) ESC-(Alld) 2002 do not laid down the
correct law.
Case law discussed:
2004 (4) ESC (Alld) 2002
1994 (4) SCC-138
1996 (5) SCC-308

## Text

2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
775
was allowed by the learned Single Judge .
Special Appeal was filed by the College.
The learned Single Judge held that the
order terminating her services was made
without obtaining permission of the
Inspectress
of
Schools
hence
the
termination was invalid. The Division
Bench noted the provisions of 'Section
16F of the Intermediate Education Act,
1921 which provided that a teacher can be
appointed with the approval of the
Inspectress of Schools. The Regional
Deputy Director of Education . The
Division Bench held that the provisions of
Section 16F (1) of the Act providing for
approval before appointment is mandatory
provision. The writ petitioner was not
appointed with the approval of the
education authority, hence there was no
necessity for obtaining approval before
termination. The Division Bench held that
the provisions of Section 16G (3) of the
U.P. Intermediate Education Act, 1921 is
not applicable in the facts of that case.
The appointment itself was not made with
the approval. There cannot be any quarrel
with the proposition laid down by the
Division Bench in the case of Arya
Kanya Pathshala and another (supra) .
The said proposition however, is not
attracted in the present case. In the present
case the engagement of the appellant was
made in the year 1980 and her services
were never terminated on the ground that
she was less than eighteen years of age at
the time of her initial engagement rather
the appellant was allowed to continue as
Angan Bari Karyakatri and as was also
allowed to participate in the selection for
promotion. When no objections were
taken with regard to appointment of the
appellant as Angan Bari Karyakatri for
last eighteen years the same could not be
taken at the time of consideration for
promotion on the post of Mukhya Sewika
for which post all eligibilities are fulfilled
by the appellant.

14. We are of the view that the
proposition laid down in both the above
judgements relied by the learned Single
Judge are not attracted in the present case
and the learned Single Judge erred in
dismissing the writ petition following the
aforesaid two cases.

15. The appellant has made out case
for grant of relief to her. We have held
that the appellant is entitled to be
promoted on the post in question and her
non promotion on the ground as given in
the order dated 1.5.1999 was wholly
erroneous. The order dated 1.5.1999 as
well as the judgement of the learned
Single Judge are set aside. The appellant
is held fully entitled to be promoted as
Mukhya
Sewika.
We
direct
the
respondents to pass appropriate order for
promotion of the appellant in the event a
vacancy still exist and if no vacancy exist
in any future vacancy on the post of
Mukhya Sewika.

16. The appeal is allowed to the
extent indicated above. Parties shall bear
their own costs.

Appeal Allowed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.09.2005

BEFORE
THE HON'BLE AJOY NATH RAY, C.J.
THE HON'BLE ASHOK BHUSHAN, J.

Special Appeal No.1153 of 2005

Raj Kumar Jaiswal ...Petitioner/Appellant
Versus
Punjab National Bank and others
 ...Respondents
776 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
Counsel for the Petitioner:
Sri A.N. Srivastava

Counsel for the Respondents:
Sri Hari Ashok Kumar
S.C.

Constitution of India, Art. 14 and 16Compassionate
appointment-whether
the provisions of Dying in Harness Rules
are violative of Act 14 and 16 of the
Constitution? Held-'No'

Held: Para 19 and 21

The conclusion is irresistible that the
compassionate appointment itself cannot
be held to be violative of Articles 14 and
16 of the Constitution.

In view of the foregoing discussions,
with respect, we are unable to approve
the observations of the learned Single
Judge in Ram Pratap Singh's case
(supra){in paragraph 69 (ii)} that the
Dying in Harness Rules do not stand the
test of valid classification and are hit by
Articles 14 and 16 of the Constitution of
India, the above observations do not lay
down the correct law.

Important Note-Ram Pratap Singh Vs.
State of U.P. and others reported in 2004
(4) ESC-(Alld) 2002 do not laid down the
correct law.
Case law discussed:
2004 (4) ESC (Alld) 2002
1994 (4) SCC-138
1996 (5) SCC-308

(Delivered by Hon'ble Ajoy Nath Ray, CJ.)

1. Heard learned counsel for the
appellant
and
the
learned
Standing
Counsel.

2. This is an appeal against the
judgment and order dated 17.8.2005, by
which judgment the writ petition filed by
the appellant praying for a mandamus
commanding the respondents to appoint
the writ petitioner-appellant under Dyingin-Harness Rules has been rejected.

3. The appellant's case in the writ
petition is that the appellant's father was
working in the Punjab National Bank on
the post of Cash Peon, who died on
17.7.1996. The appellant after the death
of his father, namely; Late Sri Ram
Jaiswal, made an application in the year
1996 for compassionate appointment to
meet out his great financial hardship,
which he is facing after the death of his
father. The appellant's further case is that
he has passed High School and is eligible
for appointment on Clerical post. The
appellant's case is that he was intimated
by the Punjab National Bank, Regional
Office, Kanpur Nagar, vide letter dated
28.4.1997
that
the
request
of
the
employment
of
the
appellant
on
compassionate ground has been rejected.
Learned Single Judge dismissed the writ
petition
taking
the
view
that
the
appellant's
claim
for
compassionate
appointment was rejected by an order
dated 28.4.1987, and no relief can be
granted after the expiry of so many years.

4. Learned counsel for the appellant
contended that the Bank has been
pursuing
the
policy
of
giving
compassionate appointment with regard to
the employees, who died in harness.
Learned
counsel
for
the
appellant
submitted that although a learned Single
Judge in Ram Pratap Singh Vs. State of
U.P. & Others, reported at (2004) 4 ESC
(All.) 2002 has held that Dying-inHarness Rules do not stand the test of
valid classification and, therefore, the
Rules
contemplating
compassionate
appointment are hit by Article 14 and 16
of the Constitution of India, but the said
2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
777
judgment does not lay down the correct
law and do not stand in way of the
appellant's
claim
for
compassionate
appointment. The learned counsel for the
appellant further contended that the
appointment on compassionate ground is
exception to general rule of recruitment,
and the said exception, has valid object
and rules providing for compassionate
appointment are neither arbitrary nor hit
by Article 14 and 16 of the Constitution
of India.

5. Learned counsel for the appellant
submitted that the observations made by
Hon'ble Single Judge in Ram Pratap
Singh's
case
(Supra)
are
general
observations
with
regard
to
constitutionality of rules relating to Dying
in Harness and the said observations also
cloud the entitlement of the appellant for
consideration
for
compassionate
appointment by Punjab National Bank.
Learned counsel submits that in case of
Ram Pratap Singh the Court apart from
referring the Uttar Pradesh Government
Recruitment
of
Dependents
of
Governments Dying in Harness Rules,
1974
specifically
made
observations
against the very concept of Dying in
Harness Rules. Learned counsel for the
appellant lastly contended that the writ
petition of the appellant has been
dismissed on an incorrect assumption that
the claim of the appellant having been
rejected on 28.4.1987, no relief can be
granted after so many years whereas the
claim of the appellant was rejected not on
28.4.1987 but on 28.4.1997. The appellant
had made several requests for giving copy
of the order, which was not given to the
appellant, which was reason for not
immediately approaching this Court by
filing writ petition.
6. Before we proceed to consider the
correctness of judgment under appeal, it is
necessary to consider the larger question
raised by the counsel for the appellant as
to
whether
the
compassionate
appointment is itself violative of Article
14 of the Constitution of India.

7. The rules providing for giving of
compassionate appointment in the event
of death of an employee have been
adopted in government service as well as
services in various financial institutions,
local bodies and public corporations.
Special rules for giving appointment to
the dependent of deceased employee have
been framed by different employers
providing for different schemes and
entitlements. The object of providing
compassionate appointment is to enable
the family to tide over the sudden crisis
which has been caused due to death of
breadearner of the family taking into
consideration the service rendered by the
employee.

8. The first question to be answered
is
as
to
whether
the
provisions/rules/schemes providing for
compassionate appointment is based on
any valid classification and violates the
right of other eligible candidates who are
entitled to claim appointment on the basis
of open competition and merit. Article 14
of the Constitution forbid the State to
deny equality before law or to the equal
protection of the laws to any person. The
right of employment or appointment to an
office is a valuable right possessed by all
citizens. Article 14, however, does not
forbid
classification
provided
the
classification is founded on an intelligible
differentia distinguishing those who are
group together and the differentia must
have rational nexus to the object sought to
778 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
be achieved. In Prabodh Verma and
another vs. State of U.P. and others, AIR
1985 SC 167, the Supreme Court
considered the case of valid classification
while giving appointment to teachers in
the State of Uttar Pradesh. The Apex
Court considered the validity of the Uttar
Pradesh High School and Intermediate
Colleges
(reserve
pool
teachers)
Ordinances 1978 in the aforesaid case.
During the period of strike by teachers
working
in
the
recognized
Higher
Secondary Schools in the State, certain
teachers were appointed to cope-up the
teaching during the period of strike. After
the
strike
was
over
the
aforesaid
Ordinance was issued providing for
giving substantive appointment to those
teachers who worked between January 9,
1978 and January 19, 1978, the validity of
the said Ordinance providing for giving
substantive appointment to reserve pool
teachers was challenged in this Court,
which was struck down by the High
Court. The question as to whether while
giving appointment to teachers, the
classification provided for reserve pool
teachers to get appointment without
following normal rule of recruitment was
considered. Applying the two well-known
tests for finding out valid classification,
the Apex Court held that there was an
intelligible differentia that distinguishes
teachers put in reserve pool from other
applicant for the post of teachers. The
Apex Court further held that the giving of
substantive appointment to the reserve
pool teachers had also rational nexus to
the object sought to be achieved by
Ordinances Nos. 10 and 22, namely, to
keep the system of High School and
Intermediate
Education
smoothly
functioning. The Apex Court held that
there was no question of violation of
Articles 14 and 16 of the Constitution
while giving substantive appointment.
Repelling the attack based on Articles 14
and 16 of the Constitution, the Supreme
Court laid following in paragraph 44,
which is quoted below:

44."The reserve pool teachers thus
formed a separate and distinct class from
other applicants for the posts of teachers
in recognized institutions. The differentia
which distinguished the class of reserve
pool teachers from the class of other
applicants for the posts of teachers in
recognized institutions is the service
rendered by the reserve pool teachers to
the State and its educational system in a
time of crisis and this differentia bears a
reasonable and rational nexus or relation
to the object sought to be achieved by
Ordinances Nos. 10 and 22 of 1978 read
with the Intermediate Education Act,
namely, to keep the system of High
School and Intermediate Education in the
State
functioning
smoothly
without
interruption so that the students may not
suffer a detriment. Those two classes of
persons, namely, the class of reserve pool
teachers and the class of other applicants
for the post of teachers in the recognized
institutions,
are
not
similarly
circumstanced and, therefore, there cannot
be any question of giving these two
classes of persons equality of opportunity
in
matters
relating
to
employment
guaranteed by Article 16 (1) of the
Constitution. Thus, neither Article 14 nor
Article 16(1) of the Constitution was
violated by the provisions of either U.P.
Ordinance No. 10 of 1978 or U.P.
Ordinance No. 22 of 1978."

9. As far as test of intelligible
differentia is concerned, the test is clearly
satisfied while considering the dependent
of deceased employee dying in harness
2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
779
and other applicant for the post from open
market. Dependent of an employee in
government employment or employment
of any other organization who dies while
in service falls in separate category and it
cannot be said that the classification made
by the relevant rules or schemes has no
intelligible differentia.

10. Government employee or any
other employee of public organization is
governed by different service conditions
as laid down from time to time by the
competent authority. The facility that after
the death of an employee in harness, his
one of the dependants shall be considered
for appointment, is one of the conditions
provided for in the relevant rules or
schemes and it is for the appropriate
legislature or employer, as the case may
be, while framing the said scheme to take
into consideration all relevant facts.
Object of the rules is to provide for social
security and to provide for a source of
livelihood to one of the dependants of the
deceased employee so that sudden crisis
in
the
family
of
the
Government
employee is met out. In most of service
organizations, may be, Government or
under
public
sectors
or
financial
institutions, several benefits are extended
to its employees and providing for
employment to one of the dependants of
the deceased employee is amongst one of
such benefits. The benefits extended to
the employees in service jurisprudence
are as a measure of social security and
with
object
to
provide
satisfactory
condition of service. The cases are also
not unknown where in some service
organizations
and
public
sector
corporations, the benefit of compassionate
appointment has not been provided for. In
the present case, however, we are
concerned with a case where the scheme
do
provide
for
compassionate
appointment in event of death of an
employee in harness.

11. In Ram Pratap Singh's case
(supra) a learned Single Judge of this
Court held that Dying in Harness Rules
do not stand the test of valid classification
and, therefore, the rules contemplating
compassionate appointment are hit by
Articles 14 and 16 of the Constitution of
India. In taking the above view, the
learned Single Judge in the said judgment
relied on various reasons as noted in the
judgement.

12. It was held that offering job to a
dependant alone is not a possible solution.
This sympathy cannot be allowed to
override a statutory provision and/or
constitutional provision. The State cannot
be allowed to look after the welfare of its
own employees and their families alone.
Learned Judge further held that there is no
justification for the Government to make
compassionate
appointment
of
a
dependant of an employee dying in
harness ignoring families of those waiting
in open market and whose families are in
still graver condition. Employment in the
State or its authority must be on merit
alone. The compassionate appointment in
a
way
creates
reservation
within
reservation.
The
compassionate
appointment makes reservation over the
permissible
limit
of
50%.
The
appointments ignoring merit in the public
service
are
bound
to
affect
the
administrative efficiency. The learned
Judge
further
observed
that
long
experience
of
compassionate
appointments
in
the
Government
establishments corporate/local bodies and
educational institution, is not only bad but
it
has
also
completely
belied
the
780 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
expediency of such appointment in the
context of ''quality of service' / ''quality of
administration'. The learned Judge further
observed
that
compassionate
appointments in the State have become a
virtual scam and some time employee
colludes and it has become a source of
corruption in the State. The provision of
compassionate appointments under Dying
in Harness Rules are being put to sheer
misuse.

13. The learned Single Judge in
Ram Pratap Singh's case (supra) had
raised several questions with regard to
compassionate appointment and made
observations that there has been large
scale
misuse
of
the
compassionate
appointment by employers and their
officers. The reasons which have given by
the learned Single Judge in taking the
above
view
are:
-
compassionate
appointment denying opportunity to other
applicants to compete on merit, the
efficiency
of
administration
is also
adversely affected by giving appointment
on compassionate ground to one of the
dependants, in some case, the appointee
neglects
his
family
members
after
appointment,
rules
of
compassionate
appointment
have
been
thoroughly
misused, the conclusion of learned Single
Judge has been sum up in paragraph 69 of
the judgment which is extracted below:-

69:"To sum up (i) petitioner has
failed on the facts of the present case, as
discussed above, to prove 'distress' which
could warrant compassionate appointment
to mitigate hardship immediately to the
family of deceased employee in question;
and (ii) in the light of the discussion made
above, Dying in Harness Rules do not
stand the test of valid classification and,
therefore,
the
Rules
contemplating
compassionate appointments are hit by
Article 14 and 16, Constitution of India
(iii) Respondents are directed to activate
Compassionate Fund Rule and The U.P.
Benevolent Fund Scheme 1997, and to
make it real, purposive and effective so as
to achieve solemn object for which they
are framed; (iv) A copy of this judgment
shall be sent to Chief Secretary for
bringing the matter to the concerned and
the State Government is mandated to take
appropriate action in the light of the
above".

14. The reason given by the learned
Single
Judge
that
the
giving
of
compassionate appointment violates the
rights of other applicants to compete for
an office, needs to be first examined. The
general rule of recruitment in all service is
to recruit the candidate for a post giving
equal
opportunity
to
all
eligible
candidates.
The
compassionate
appointments have been held to be
exception of this general rule. The above
exception has been accepted in all service
organization and has been approved by
the Apex Court in several cases. The
Apex Court in Umesh Kumar Nagpal vs.
State of Haryana and others, 1994, 4
SCC 138 had occasion to consider the
purpose and object of compassionate
appointment.

15. The Apex Court noted in the
above judgment that the compassionate
appointment is one of the exceptions to
the general rule of recruitment. Following
was in paragraph 2 of the judgment:-

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
2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
781
on the issue. As a rule, appointments in
the public services should be made strictly
on the basis of open invitation of
applications and merit. No other mode of
appointment nor any other consideration
is permissible. Neither the 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".

16. In a subsequent judgment the
Apex Court again examined the object
and
purpose
of
the
compassionate
appointment, i.e., the State of Haryana
and others vs. Rani Devi and another
(1996) 5 SCC 308. While examining the
object and purpose of compassionate
appointment the Apex Court had also
taken into consideration the equality
clause
under
Article
14
of
the
Constitution of India. The Apex Court
further laid down in the said judgment
that while framing any rule in respect of
appointment on compassionate ground the
authorities have to be conscious of the
fact that this right which is being
extended to a dependent of the deceased
employee is an exception to the right
granted to the citizen under Articles 14
and 16 of the Constitution of India. As
such, there should be a proper check and
balance. Following was laid down in para
5 of the above judgment:-

5."The question of appointment of
one of the dependants of an employee of
the State or Central Government who dies
while in service has of late assumed
importance and subject - matter of
controversy before different courts. This
Court in the case of Sushma Gosain vs.
Union of India, AIR 1989 SC 1976 after
referring to the government memorandum
under
which
the
appointment
on
compassionate ground was being claimed
observed that the purpose of providing
appointment on compassionate ground is
to mitigate the hardship due to the death
of the breadearner in the family. It cannot
be
disputed
that
appointment
on
compassionate ground is an exception to
the equality clause under Article 14 and
can be upheld if such appointees can be
held to form a class by themselves,
otherwise any such appointment merely
782 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
on the ground that the person concerned
happens to be a dependent of an exemployee of the State Government or the
Central Government shall be violative of
Articles 14 and 16 of the Constitution.
But this Court has held that if an
employee dies while in service then
according to rules framed by the Central
Government or the State Government to
appoint one of the dependents shall not be
violative of Articles 14 and 16 of the
Constitution because it is mitigate the
hardship due to the death of the
breadearner of the family and sudden
misery faced by the members of the
family of such employee who had served
the Central Government or the State
Government. It appears that this benefit
has also been extended to the employees
of the authorities which can be held to be
a State within the meaning of Article 12
of the Constitution. But while framing
any rule in respect of appointment on
compassionate ground the authorities
have to be conscious of the fact that this
right which is being extended to a
dependent of the deceased employee is an
exception to the right the granted to the
citizen under Articles 14 and 16 of the
Constitution. As such there should be a
proper check and balance."

17. The above observations of the
Apex Court clearly lay down that giving
of compassionate appointment to a
dependant of the deceased employee is
valid classification and does not offend
Articles 14 and 16 of the Constitution, but
the giving of compassionate appointment
is only an exception to the general rule
and there should be check and balances,
and the appointments on compassionate
ground have to be in accordance with the
rules. The Apex Court further laid down
that for giving effect to the compassionate
appointment, it is necessary for the
authorities to frame rules, regulations
which can stand the test of Articles 14 and
16 of the Constitution. The observation
made by the Apex Court in paragraph 6 of
the judgment extracted below:-

6."It need not be pointed out that the
claim of the person concerned for
appointment on compassionate ground is
based on the ground that he was a
dependent of the deceased employee.
Strictly this claim cannot be upheld on the
touchstone of Articles 14 and 16 of the
Constitution. But this Court has upheld
this claim as reasonable and permissible
on the basis of sudden crisis occurring in
the family of such employee who has
served the State and dies while in service.
That is why it is necessary for the
authorities to frame rules, regulations or
to issue such administrative orders which
can stand the test of Articles 14 and 16."

18.

Thus
the
giving
of
compassionate appointments itself by the
Government
or
authorities
to
the
dependant of its employee does not offend
Articles 14 and 16 of the Constitution and
it is the scheme of particular Government
or authority, which has to stand the test of
Articles 14 and 16 of the Constitution. As
noted
above,
the
compassionate
appointment is an exception to the general
rule. The general rule of recruitment by
giving equal opportunity to all eligible
persons and the exception to the above
rule of general recruitment has to remain
as exception and cannot be given such
magnitude that it may eat the rule itself.
Any rule or scheme, thus, cannot
annihilate the general rule of recruitment
itself.
2 All] Raj Kumar Jaiswal V. Punjab National Bank and others
783
19. The conclusion is irresistible that
the compassionate appointment itself
cannot be held to be violative of Articles
14 and 16 of the Constitution.

20. The other reasons given by the
learned Single Judge in Ram Pratap
Singh's case (supra) relate to misuse of
rules
of
compassionate
appointment,
collusion and misdeeds committed by the
government
officers
in
giving
compassionate appointment. The fact that
any power given in the Statute is misused
or the exercise of power is made
arbitrarily or have improper object, does
not
make
the
Statute
itself
unconstitutional. Any improper exercise
of power under the Statute, or arbitrary
action taken by any functionary can
always be scrutinized and corrected, but
that itself does not make the Statute
unconstitutional. Further, the question as
to
whether
particular
Government,
Institution and Organization provides for
compassionate
appointment
for
its
deceased employee's dependant is a
question of policy. It is well settled that
no dependant of the deceased employee
can claim appointment on compassionate
ground without there being any rules or
regulations.
The
compassionate
appointment is an enabling provision
empowering the proper legislature and
employer to provide for compassionate
appointment.
It
is
open
for
the
Government or other organization not to
provide for compassionate appointment, if
in
any
particular
situation
or
circumstance, it is not possible or for any
reason or it does not serve the object and
purpose. But the rules or schemes for
compassionate appointment cannot be
held unconstitutional only on the ground
that it provides a special procedure of
recruitment of dependant of deceased
employee.

21. In view of the foregoing
discussions, with respect, we are unable to
approve the observations of the learned
Single Judge in Ram Pratap Singh's case
(supra){in paragraph 69 (ii)} that the
Dying in Harness Rules do not stand the
test of valid classification and are hit by
Articles 14 and 16 of the Constitution of
India, the above observations do not lay
down the correct law.

22. The providing for compassionate
appointment by Rules, Schemes or
Regulations, itself is not violative of
Articles 14 and 16 of the Constitution.

23. Coming back to the facts of this
case, the learned Single Judge dismissed
the writ petition of the appellant-writ
petitioner only on the ground that the
claim of the appellant for compassionate
appointment was rejected on 28.4.1987
and the relief has been sought after expiry
of so many years. The learned counsel for
the appellant has rightly submitted that
the claim of the appellant was rejected
only on 28.4.1997, and not on 28.4.1987.
Learned counsel for the appellant further
contended that the appellant has made
several requests for supply of the order
dated 28.4.1997, but the said copy was
not supplied to him and due to above fact,
certain time was taken in approaching this
Court.

24. We are satisfied that the learned
Single Judge has committed an error in
dismissing the writ petition filed by the
appellant-writ petitioner only on the
ground that the claim of the appellant for
compassionate appointment was rejected
on 28.4.1987, and we set aside the
784 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
impugned order dated 17.8.2005 and
remit the writ petition back for a fresh
consideration in accordance with law.

The appeal is, accordingly, allowed.
No order as to costs.
Appeal Allowed.
---------
APPELLATE JURISDICTION
CRIMINAL JURISDICTION
DATED: ALLAHABAD 04.05.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 3497 of
2006

Saurabh

 ...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri R.K. Yadav

Counsel for the Opposite Party:
Sri S.P.S. Rathore
A.G.A.

Code
of
Criminal
Procedure-439-Bail
Application-offence under Section 498-A,
304-B I.P.C.-unnatural death within 5
months
of
marriage-allegation
of
demand of dowry and cruelty in dying
declaration role of applicant specifiedheld-not entitled for bail.

Held: Para 5

Considering the fact and circumstances
of the case and the submission made by
the learned counsel for the applicant and
the learned A.G.A., and considering the
fact that the deceased died within 5
months of her marriage, the death is
unnatural, the allegation of demand of
dowry
and
cruelty
is
against
the
applicant, there is a dying declaration of
the deceased in which specific role of
committing the murder of the deceased
has been attributed to the applicant and
without expressing any opinion on the
merit of the case, the applicant is not
entitled for bail. The prayer for bail is
refused.

(Delivered by Hon'ble Ravindra Singh, J.)

1. This application is filed by the
applicant Saurabh with a prayer that he
may be released on bail in case crime no.
112 of 2005 under section 498 A, 304 B
I.P.C. P.S. Kasiraj district Etah.

2. The prosecution story, in brief is
that in the present case the F.I.R. has been
lodged by Rajesh Kumar, brother of the
deceased Smt. Baby alias Pinky on
15.5.2005 at 6.00 p.m. in respect of the
incident which had occurred in the night
of 26/27.4.2005 at 4.30 a.m. It is alleged
that the marriage of the deceased was
solemnized
with
the
applicant
on
15.12.2004. The amount of Rs. 2 lacs was
defrayed in the marriage but the in laws of
the deceased were not satisfied with the
dowry given to them. They were
demanding motor cycle and Rs.50,000/-
and to fulfill the demand of dowry they
were torturing the deceased physically
and mentally. In the night of 26/27.4.2005
at about 4.30 a.m. the applicant and other
co-accused poured acid and petrol on the
deceased, consequently, she received
injuries she was taken to the hospital. The
first informant was given an information
about the treatment of his sister in the
hospital he went there and saw her
condition. Thereafter he lodged the F.I.R.

3. Heard Sri Radhakrishna Yadav
learned counsel for the applicant; learned
A.G.A. and Sri S.P. Rathore, learned
counsel for the complainant.

It is alleged by the learned counsel
for the applicant:-