# Raj Kumar v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 475
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-11-01
- **Case number:** Writ-A No. 40280 of 2011
- **Bench:** Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raj-kumar-v-state-of-u-p-ors-49159
- **Pages:** 3

## Headnote

A. Service Law - U.P. Recruitments of
Dependants of Government Servants Dying
in Harness Rules, 1974 - Rule 7-Challenge
to- Compassionate appointment-Petitioner
father died in harness and younger brother
of the petitioner was appointed as an
assistant
teacher-Petitioner
claim
was
rejected before the Committee headed by
the District Inspector of Schools as the
petitioner submitted that the wife of
younger brother is working as assistant
teacher and therefore, he is not in harness
and not entitled for appointment-While
Rule 7 of the Rules, 1974 provides that if
more than one member of the family of the
deceased
Government
servant
seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment keeping
in view of the overall interest of the entire
family-Therefore
the
compassionate
appointment to the younger brother of the
petitioner has been passed on the basis of
the consent of mother and other family
members, hence the same cannot be
quashed.(Para 1 to 11)

The writ petition is dismissed. (E-6)
476 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Raj Kumar Vs. State of U.P. & Ors.
475
received with reference to the Rules of
1978 as they stood prior to the amendment
which took place on 12 June 2008
obviously because the selection process
was initiated and completed before the
amendment
had
taken
effect.
Where
statutory Rules prescribe conditions of
eligibility for appointment to a post, a
person
who
does
not
possess
the
qualification which is prescribed cannot
have a lawful entitlement to hold the post.
The appointment of a person who does not
fulfill the eligibility qualification would be
unlawful, being contrary to the Rules."

16. The submission of the Counsel for
the petitioner with regard to the violation of
principles of natural justice, although on
the first brush merit acceptance, however,
considering the fact that the petitioner
never had the requisite qualification for
appointment,
the
non
following
of
principles of natural justice would have no
effect on outcome of the petition as it is
well settled that in service jurisprudence
the allegations of violation of principles of
natural justice have to be fortified by the
test of prejudice caused on account of
violation of principles of natural justice, as
such, the submission on that count by the
Counsel for the petitioner merits rejection.

17. For all the reasons recorded
above, the writ petition lacks merit and is
accordingly dismissed.

18. The submission of Counsel for the
petitioner with regard to the non-following
of the 1999 Rules also merit rejection for
the simple reasons that the appointment of
the petitioner itself was found to be dehors
the Rules and thus, once the appointment is
obtained based upon the incorrect facts, the
Rules need not to be followed.
----------
(2023) 1 ILRA 475
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.11.2022

BEFORE

THE HON'BLE RAJIV JOSHI, J.

Writ-A No. 40280 of 2011

Raj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Radha Kant Ojha, Sri A.K. Singh, Sri
Pradeep Kumar VI, Sri Shivendu Ojha

Counsel for the Respondents:
C.S.C., Sri Ramesh Chandra Mishra, Sri
Govind Narayan Srivastava

A. Service Law - U.P. Recruitments of
Dependants of Government Servants Dying
in Harness Rules, 1974 - Rule 7-Challenge
to- Compassionate appointment-Petitioner
father died in harness and younger brother
of the petitioner was appointed as an
assistant
teacher-Petitioner
claim
was
rejected before the Committee headed by
the District Inspector of Schools as the
petitioner submitted that the wife of
younger brother is working as assistant
teacher and therefore, he is not in harness
and not entitled for appointment-While
Rule 7 of the Rules, 1974 provides that if
more than one member of the family of the
deceased
Government
servant
seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment keeping
in view of the overall interest of the entire
family-Therefore
the
compassionate
appointment to the younger brother of the
petitioner has been passed on the basis of
the consent of mother and other family
members, hence the same cannot be
quashed.(Para 1 to 11)

The writ petition is dismissed. (E-6)
476 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Rajiv Joshi, J.)

1.

Heard
Sri
Shivendu
Ojha,
Advocate holding brief of Sri R.K. Ojha,
learned Senior Advocate appearing for the
petitioner and Sri Govind Narain Srivastava
assisted by Sri Rajesh Pandey, learned
Additional Chief Standing Counsel for the
respondents-1 & 2.

2. The instant writ petition under
Article 226 of the Constitution has been
filed quashing the impugned order dated
20.06.2011 passed by respondent no.2-The
Selection Committee, District Maharajganj
through its Chairman/District Inspector of
Schools, Maharajganj, whereby younger
brother of the petitioner was appointed as
an assistant teacher under Rule 7 of The
U.P.
Recruitment
of
Dependants
of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as the
Rules, 1974) on the basis of consent given
by the petitioner on account of death of his
father, who died in harness.

3. Brief facts of the case are that
father of the petitioner namely, Late Paras
Nath Singh, who was working as Assistant
Teacher in Bapu Shatabdi Inter College,
Jahda,
Post
Basulifarm,
District
Maharajganj died on 11.12.2004. The
respondent no.4-Arun Kumar, who is
younger brother of the petitioner got an
order in his favour for appointment as
Assistant Teacher under the provisions of
Regulations 101 to 107 of Chapter III of
the U.P. Intermediate Education Act.

4. The petitioner filed a petition
bearing Writ Petition No. 37405 of 2008
(Raj
Kumar
Vs.
Joint
Director
of
Education, VII Region, Gorakhpur and
others) for his appointment as Assistant
Teacher as the petitioner being M.A. in
Sociology was eligible for appointment as
Art Teacher. This Court vide order dated
1.8.2008 directed the authority concerned
to decide the matter. In pursuance of the
aforesaid order, the District Inspector of
Schools rejected the claim of the petitioner
as there was no compromise between the
parties.

5. Being aggrieved with the aforesaid
order, the petitioner filed a petition before
this Court bearing Writ Petition No. 58694
of 2008, which was allowed and the order
dated
22.10.2008
passed
by
District
Inspector of Schools, Maharajganj was set
aside and the matter was remitted back with
direction that committee may consider the
matter and pass appropriate order.

6. In pursuance of the aforesaid order,
the Committee headed by the District
Inspector of Schools, Maharajganj as its
Chairman, The Basic Shiksha Adhikari,
Maharajganj and the Finance and Account
Officer as members vide impugned order
dated 20.06.2011 rejected the claim of the
petitioner
and
granted
approval
for
appointment of respondent-4 under The
Rules, 1974. Thereafter, the petitioner
moved another application before District
Inspector of Schools, Maharajganj on
29.6.2011 disclosing the fact that wife of
respondent-4
namely,
Smt.
Poonam
Chaudhary is working as Assistant Teacher
in Primary School Gaura Nipania, Block
Nichlaul, District Maharajganj, therefore,
he is not under harness. Hence, this writ
petition.

7. Learned counsel for the petitioner
submits that petitioner is the eldest son of
late Paras Nath Singh and also fully
qualified to be appointed as Assistant
Teacher. He further submits that the wife of
respondent-4, who is younger brother of the
1 All. Prem Narain Singh Vs. State of U.P. & Anr.
477
petitioner is working as Assistant Teacher
and therefore, he is not in harness and not
entitled for appointment under the Rules,
1974.

8. On the other hand, learned
Additional Chief Standing Counsel submits
that in view of Rule 7 of The Rules, 1974,
the
order
dated
20.06.2011
granting
compassionate appointment to the younger
brother of the petitioner has been passed on
the basis of the consent of other family
members, hence, the same cannot be
quashed.

9. I have considered the rival
submission and perused the record.

10. Rule 7 of the Rules, 1974 provides
that if more than one member of the family
of the deceased Government servant seeks
employment under these rules, the Head of
Office shall decide about the suitability of
the person for giving employment. The
decision will be taken keeping in view also
the overall interest of the welfare of the
entire family, particularly the widow and the
minor members thereof. Rule 7 of the Rules,
1974, is quoted as under:

"7. Procedure when more than
one
member
of
the
family
seeks
employment. - If more than one member of
the family of the deceased Government
servant seeks employment under these
rules, the Head of Office shall decide
about the suitability of the person for
giving employment. The decision will be
taken keeping in view also the overall
interest of the welfare of the entire family,
particularly the widow and the minor
members thereof."

11. I do not find any illegality or
infirmity in the impugned order dated
20.06.2011 passed by respondent no.2
granting compassionate appointment to
respondent-4 as the same has been passed
on the basis of consent of mother of the
petitioner and other family members.

12. The writ petition lacks merit and
is, accordingly, dismissed.
----------
(2023) 1 ILRA 477
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.01.2023

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ-A No. 50939 of 2017

Prem Narain Singh ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Sri Ashutosh Tripathi

Counsel for the Respondents:
C.S.C., Sri Om Prakash Singh, Sri Sushil
Kumar Rao

A. Service Law - Dismissal - Major penalty
- Inquiry - Liability of inquiry officer
during the enquiry - Failure to discharge it
- Effect - Held, the Inquiry Officer,
entrusted with the task of holding inquiry,
has mandatorily to fix a date, time and
venue of the inquiry which he has to
intimate
to
the
delinquent
before
proceeding
further
-
It
is
the
establishment's
obligation
to
produce
witnesses and other evidence in support
of charges in an oral inquiry held by the
Inquiry Officer - High Court directed the
Corp. to treat the petitioner continuing in
service till the date of his superannuation
- However, High Court left it open to the
Corp. to examine as to whether after
retirement they can proceed against the