# Rajan v. State of U.P. & Ors. 410 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2025) 5 ILRA 409
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-13
- **Case number:** Writ A No. 790 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rajan-v-state-of-u-p-ors-410-indian-law-reports-allahabad-series-54626
- **Pages:** 3

## Headnote

Constitution of India, Article 226 - Certified
Standing Orders of Hindustan Aeronautics
Limited, Clauses 3, 19(ii), 26, 27 - Termination
for Unauthorized Absence - Petitioner, a
permanent
workman
(Clerk-cum-Typist),
challenged
the
termination
order
dated
26/28.02.1991 for unauthorized absence from
01.10.1990, struck off under Clause 19(ii) of the
Standing Orders, and sought reinSt.ment.
Petitioner claimed illness, sent multiple letters
via Under Postal Cert

## Text

5 All. Rajan Vs. State of U.P. & Ors.
409
transfer will be considered included in
the vacancies notified to the Director and shall
be filled by the same selection process. Subrule 5, therefore, is intended to deal with the
special exigency i.e. creation of vacancy on
account of transfer. In what manner transfer is
to be effected is otherwise not specified in rule
28.

33. Sub-rule 5 of rule 28, in our
considered view, has to be read in conjunction
with regulation 55 to 58 of the regulations
framed under Chapter III of the Act of 1921.
Regulation 58, as amended, clearly provides
that transfer would be impermissible against a
notified vacancy. This is otherwise the
position on account of the Full Bench
judgment of this Court in Prashant Kumar
Katiyar (supra). Regulation 55 to 58 would,
therefore, govern the exigency with which we
are presently concerned i.e. transfer of a
teacher. Rule 28(5) of the rules of 2023 read
with regulation 58 also makes it explicit that
transfer would not be permissible against
notified vacancies. This interpretation would
be consistent with the statutory scheme,
inasmuch as any encumbrance in the process
of recruitment ought not to be made once the
vacancy is notified. We are, therefore, of the
view that rule 28(5) in itself is not the enabling
provision for the Director to pass an order of
transfer
independent
of
the
provisions
contained under regulation 58, of the
regulations framed under Chapter III.

34. The only issue remaining is with
regard to the import of Section 31(2) of the
Act of 2023. Section 31(2) provides that
anything done or any action taken under the
Act of 1982 would be treated to have been
done under the Act of 2023. The only
exigency in which such action would not be
saved would be where the Act of 2023
provides for a course inconsistent with what is
contemplated under the Act of 1982. The
determination of vacancies and its intimation
to the commission virtually commences the
process of recruitment in these institutions.
Sending of the requisition to the board would,
therefore, continue to be saved under the Act
of 2023 and the only change would be that
now the appointment will have to be made by
the commission in place of the board. If any
contrary interpretation is adopted it would
result in unwanted consequences and impede
the object of making substantive appointment.
We may also note that the direct recruitment in
such institutions was previously regulated by
the Act of 1982 and is now to be made under
the Act of 2023. The appointment whether is
made by board or is made by commission is
not material for the present purposes.
However, the vacancy once is notified by
management the filing up of post has either to
be under the Act of 1982 or has to be under the
Act of 2023. Such vacancies cannot be
allowed to be filled by way of transfer.

35. For the reasons and discussions
held above, these special appeals succeed and
are allowed. Judgment and order passed by
learned Single Judge dated 13.8.2024 is set
aside. Writ petitions filed by the appellant also
succeeds and are allowed. The orders passed
by the Director dated 30.12.2022, dated
16.5.2023 and dated 28.6.2024 are set aside.
No order is passed as to costs.
----------
(2025) 5 ILRA 409
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 13.05.2025

BEFORE

THE HON'BLE AJAY BHANOT, J.

Writ A No. 790 of 2020

Rajan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents
410 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Petitioner:
Sikander Khan, Sudhanshu Pratap Singh

Counsel for the Respondents:
C.S.C., Jagannath Maurya, Mukesh Kumar
Kushwaha

A. Service Law - UP Recruitment of
Dependants
of
Government
Servant
(Dying in Harness) Rules, 1974 - Rule 2
(a)
-
Compassionate
appointment
-
Petitioner's
father
was
muster
roll
employee - Son's entitlement - Held, a
muster roll employee in the likeness of
daily wager and workcharge employee is
not a government servant within the
meaning of Rule 2 (a) of Rules, 1974 -
Petitioner being the son of a muster roll
employee is not entitled for appointment
on
compassionate
grounds
in
the
respondent-corporation - Pavan Kumar
Yadav's case relied upon - High Court
directed
to
decide
petitioner's
representation regarding dues and other
entitlement. (Para 7, 8 and 12)
Writ petition disposed of. (E-1)
List of Cases cited:
1. Writ C No. 21057 of 2010; U.P. St. Bridge
Corporation Limited & anr. Vs U.P. Rajya Setu
Nigam Sanyukt Karmchari Sangh & anr.
2. Pavan Kumar Yadav Vs St. of U.P. & ors.;
(2010) 8 ADJ 664 (ALL)
(Delivered by Hon'ble Ajay Bhanot, J.)

1. Heard Shri Sudhanshu Pratap
Singh, learned counsel for the petitioner,
learned Standing Counsel for the Staterespondent No. 1 and Shri J.N. Maurya,
learned counsel for the respondents No. 2
and 3.

2. The petitioner claims that he is
entitled to be appointed on compassionate
grounds in the respondent-corporation. The
father of the petitioner was engaged as a
muster roll employee in the respondentcorporation who died in harness.

3. The status of the petitioner's
father as a muster roll employee was also
noticed by this Court in Writ C No. 21057
of 2010 (U.P. State Bridge Corporation
Limited and another vs. U.P. Rajya Setu
Nigam Sanyukt Karmchari Sangh and
another) and the companion writ petition.
The father of the petitioner was a party to
the aforesaid writ petitions.

4. The specific pleadings in regard
to the status of the petitioner's father as a
muster
roll
employee
made
by
the
respondents have not been traversed in the
rejoinder affidavit or from the records.

5. In this wake, the Court comes
to a conclusion that the father of the who
died on 06.06.2016 was a muster roll
employee.

6.
The
entitlements
of
the
dependants of muster roll employees to
appointment on compassionate grounds
arose for consideration before the learned
Full Bench in Pavan Kumar Yadav vs.
State of U.P. and others reported at (2010)
8 ADJ 664 (ALL). The learned Full Bench
has held as under:-
 "1.
A
daily
wager
and
workcharge
employee
employed
in
connection with the affairs of the Uttar
Pradesh, who is not holding any post,
whether substantive or temporary, and is
not appointed in any regular vacancy, even
if he was working for more than 3 years, is
not a 'Government servant' within the
meaning of Rule 2 (a) of U.P. Recruitment
of Dependants of Government Servant
(Dying in Harness) Rules, 1974, and thus
his dependants on his death in harness are
5 All. Rajendra Prasad Tripathi Vs. Hindustan Aeronautics Limited
411
not
entitled
to
compassionate
appointment under these Rules. "

7. A muster roll employee in the
likeness of daily wager and workcharge
employee is not a government servant
"within the meaning of Rule 2 (a) of the
U.P.
Recruitment
of
Dependants
of
Government Servant (Dying in Harness)
Rules, 1974

8. The law laid down by the learned
Full Bench in Pavan Kumar Yadav
(supra) shall also be applicable to muster
roll employees. The petitioner being the
son of a muster roll employee is not
entitled for appointment on compassionate
grounds in the respondent-corporation.

9. The prayer made by the learned
counsel for the petitioner for grant of
appointment on compassionate ground is
declined.

10. After the order was dictated,
Shri Sudhanshu Pratap Singh, learned
counsel for the petitioner submits that some
of the dues and entitlements of the
petitioner's late father have not been
disbursed. The same may be released to the
petitioner and other legal heirs of the
deceased employee.

11. Shri J.N. Maurya, learned
counsel for the respondent-corporation
fairly submits that any such claim of the
petitioner is liable to be processed by the
respondents in a reasonable period of time.

12. In this wake, the writ petition is
disposed
of
with
the
following
directions:-

 i) The petitioner shall submit an
application for various dues to which he
and other legal heirs claims entitlements to
the respondent No. 3.

ii) The respondent No. 3 shall
decide the aforesaid representation of the
petitioner within a period of four months
from the date of receipt of a certified copy
of this order along with a fresh copy of the
representation.
----------
(2025) 5 ILRA 411
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 23.05.2025

BEFORE

THE HON'BLE BRIJ RAJ SINGH, J.

Writ A No. 3653 of 2001

Rajendra Prasad Tripathi ...Petitioner
Versus
Hindustan Aeronautics Limited
 ...Respondent

Counsel for the Petitioner:
Sampurnanand
Shukla,
Abhinav
Nath
Tripathi, Amrendra Nath Tripathi, Anurag
Tyagi,
D.K.
Srivastava,
S.K.
Tripathi,
Subodh Kumar Verma, Vishal Singh

Counsel for the Respondent:
P.K. Sinha

Constitution of India, Article 226 - Certified
Standing Orders of Hindustan Aeronautics
Limited, Clauses 3, 19(ii), 26, 27 - Termination
for Unauthorized Absence - Petitioner, a
permanent
workman
(Clerk-cum-Typist),
challenged
the
termination
order
dated
26/28.02.1991 for unauthorized absence from
01.10.1990, struck off under Clause 19(ii) of the
Standing Orders, and sought reinSt.ment.
Petitioner claimed illness, sent multiple letters
via Under Postal Certificate (not registered), and
argued that termination required disciplinary
enquiry under Clauses 26 and 27, not Clause
19(ii), which was inapplicable to permanent
workmen, citing Chandu Lal vs. Pan American
World Airways. Respondent countered that