# Ram Charan v. State of U.P. &Ors

- **Citation:** (2019) 1 ILRA 798
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-05-03
- **Case number:** Writ-A No. 10489 of 2008
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-charan-v-state-of-u-p-ors-44478
- **Pages:** 5

## Headnote

"temporary appointment"; hence order
appointing Petitioner on temporary basis
to be treated as having been made on
Substantive basis. Since impugned order
passed without notice, therefore set
aside.
(Para
14,15,16,17)
1 All. Ram Charan Vs. State of U.P. & Ors.
799
B. Regularization on temporary basis -
Subsequently
regularization
order
cancelled.

 Writ Petition allowed.

Case law discussed/relied: -

## Text

798 INDIAN LAW REPORTS ALLAHABAD SERIES
grant of appointment on compassionate
grounds on 19.05.2016. Delay in making
the application for appointment on
compassionate grounds is defended on
the sole ground that on the date of death
of the father of the petitioner, the
petitioner was minor. The mother of the
petitioner had submitted an application
for reserving a post for the petitioner till
he attain majority. The petitioner applied
for
appointment
on
compassionate
grounds when he attained majority. On
these established facts and in view of the
legal
narrative
in
the
preceding
paragraphs, the claim of the petitioner is
untenable in law.

39. There are other aspect to the
contrary as well.

40. In the writ petition, it is stated
that the date of birth of the petitioner is
15.08.1990.
According
to
which,
petitioner was 26 years at the time of
submission
of
the
application
for
compassionate grounds appointment.

41. In view of the delay in filing the
application for grant of appointment on
compassionate
grounds,
this
Court
consistent with the narrative in the earlier
part of the judgment, finds that the
financial crisis, if any, occasioned by the
death of the father of the petitioner was
not existing when the application for grant
of compassionate grounds appointment
was made by the petitioner. There is no
lawful basis for grant of appointment on
compassionate grounds to the petitioner.

42. Moreover, in the light of the
discussion in the earlier part of the
judgment, post cannot be kept reserved for
the kin of an employee till they attain
majority.

43. Emotional distress and financial
penury are two distinct facts. Emotional
distress is not relevant for appointment on
compassionate
grounds.
It
is
only
immediate financial penury which is
relevant for such appointment.

44. There is no justification for grant
of compassionate appointment to the
petitioner. The rejection of the claim of
the petitioner is lawful. There is no
infirmity in the impugned order dated
26.09.2018 passed by the respondent no.
2 dismissing the claim of the petitioner
for appointment under the Dying-inHarness Rules.

45.

The
writ
petition
is
dismissed.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.05.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ-A No. 10489 of 2008

Ram Charan ...Petitioner
Versus
State of U.P. &Ors. ...Respondents

Counsel for the Petitioner:
Sri R.C. Maurya, Sri D.B. Maurya, Sri D.B.
Yadav, Sri S.K.S. Baghel, Sri R.P. Mishra

Counsel for the Respondents:
C.S.C.

A. Appointment made on compassionate
basis is a regular appointment and not
"temporary appointment"; hence order
appointing Petitioner on temporary basis
to be treated as having been made on
Substantive basis. Since impugned order
passed without notice, therefore set
aside.
(Para
14,15,16,17)
1 All. Ram Charan Vs. State of U.P. & Ors.
799
B. Regularization on temporary basis -
Subsequently
regularization
order
cancelled.

 Writ Petition allowed.

Case law discussed/relied: -
1.
Dhirendra
Pratap
Singh
vs.
District
Inspector of Schools and others 1991 (1)
UPLBEC 427

2. Gulab Yadav vs. State of U.P. and others
1991 (2) UPLBEC 995

3. Budhi Sagar Dubey vs. District Inspector of
Schools and others 1993 ESC 21

4. Ravi Karan Singh vs. State of U.P. and
others 1999(3) UPLBEC 2263

5. Sanjai Kumar vs. Dy. Director General
(NCE),
Directorate
and
others,
2002(3)
UPLBEC 2748.

6. Ram Chandra vs. State of U.P. and others,
2008(2) UPLBEC 1431

7. Sr. General Manager, Ordnance Factory vs.
Central Administrative Tribunal and others,
2016(2) ADJ 751

8. Vikas Mishra vs. State of U.P. and others
2019(3) ADJ 486

9. D.N.Upadhiya and another Vs The State of
U.P. and another 1985 UPLBEC 1112 (E-3)
(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri R.P.Mishra, Advocate,
holding brief of Sri S.K.S. Baghel,
learned counsel for petitioner, learned
Standing Counsel for respondents and
perused the record.

2. Petitioner's father Sri Ram Singh
Beldar was working in U.P.P.W.D. and died
in harness whereupon vide order dated
30.3.1983 Executive Engineer, National
Highway, Construction Division, U.P.P.W.D.,
Agra appointed petitioner on temporary basis
as Beldar in Work Charge Establishment.
Thereafter on 04.08.1999, an order was issued
by Chief Engineer, Agra Region, P.W.D.,
Agra that those Work Charge Employees,
who have worked continuously for five years
may
be
regularized.
Pursuant
thereto
Executive Engineer, Provincial Division,
P.W.D., Agra passed an order dated
11.05.2000
regularizing
petitioner
on
temporary basis with effect from 01.05.2000.

3.
Subsequently,
order
dated
04.08.1999 issued by Chief Engineer,
Agra and dated 11.05.2000 issued by
Executive Engineer, Provincial Division,
Agra, have been cancelled vide impugned
order dated 22.7.2000.

4. It is contended that firstly
compassionate appointment is given in
substantive capacity and, therefore, there
is no occasion for regularization on
temporary basis and, secondly even
otherwise when regularization order was
already passed, it could not have been
cancelled in violation of principles of
natural justice and without any show
cause notice.

5. The first question need to be
considered in this case is, "whether
compassionate appointment made under
U.P. Recruitment of Dependants of
Government Servants Dying in Harness
Rules, 1974 (hereinafter referred to as
"Rules,
1974")
could
have
been
temporary or it is always substantive
appointment?"

6. I find that there are three
authorities on the subject in which it was
held that an appointment made under
800 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules,
1974
is
always
a
permanent
appointment. First of all there were three
Single Judge decisions in Dhirendra Pratap
Singh vs. District Inspector of Schools and
others 1991 (1) UPLBEC 427; Gulab
Yadav vs. State of U.P. and others 1991 (2)
UPLBEC 995 and Budhi Sagar Dubey vs.
District Inspector of Schools and others
1993 ESC 21. Thereafter, a Division Bench
consisting of Hon'ble Markandey Katju (as
His Lordship then was) and Hon'ble Kamal
Kishore, JJ, in Ravi Karan Singh vs. State of
U.P. and others 1999(3) UPLBEC 2263
took the same view.

7. A learned Single Judge, taking a
different view than what was taken in
earlier three Single Judges' judgments,
referred the question to Larger Bench and
considering such reference, Division
Bench in Ravi Karan Singh (supra), said
as under :

"2. In our opinion, an appointment
under the Dying-in-Harness Rules has to
be treated as a permanent appointment
otherwise if such appointment Is treated to
be a temporary appointment, then it will
follow that soon after the appointment, the
service can be terminated and this will
nullify the very purpose of the Dying-inHarness Rules because such appointment is
intended to provide immediate relief to the
family on the sudden death of the bread
earner. We, therefore, hold that the
appointment under Dying-in -Harness Rules
is a permanent appointment and not a
temporary appointment, and hence the
provisions of U. P. Temporary Government
Servant (Termination of Services) Rules.
1975 will not apply to such appointments. "
(Emphasis added)

8. The above Division Bench was
followed in another Division Bench
consisting of Hon'ble S.K.Sen, C.J. and
Hon'ble
Ashok
Bhushan,J.
(as
His
Lordship then was) in Sanjai Kumar vs.
Dy.
Director
General
(NCE),
Directorate
and
others,
2002(3)
UPLBEC 2748.

9. Again another Division Bench in
Ram Chandra vs. State of U.P. and
others,
2008(2)
UPLBEC
1431
following Division Bench judgment in
Ravi Karan Singh (supra), said that
appointments made under Rules, 1974 are
of permanent nature.

10. In the context of Central
Government employees, all the above
judgments have been examined by a Full
Bench of this Court in Sr. General
Manager,
Ordnance
Factory
vs.
Central Administrative Tribunal and
others, 2016(2) ADJ 751. Following
three questions were referred to the Full
Bench :

"1. Where a person is granted
compassionate appointment as a member
of the family of a deceased employee of
the government who has died in harness
in relaxation of the normal rules for
recruitment, is it not necessary that even a
compassionate appointee be placed on
probation in the first instance, in the same
manner as any other direct recruit, since
the provision pertaining to appointment
on probation has not been excluded or
exempted in the case of a compassionate
appointment;

2.
Since
an
appointment
on
compassionate grounds on probation is
also a regular appointment and a person
appointed as such is not offered a
temporary appointment, whether there is
any violation of law or principle in
appointing a person in this category on
probation in the first instance;
1 All. Ram Charan Vs. State of U.P. & Ors.
801

3. In view of the clear distinction in
service jurisprudence between a regular
and a temporary appointee, whether the
appointment
of
a
person
on
a
compassionate basis on probation is
permissible in law." (Emphasis added)

11. Above questions were answered
by Full Bench, as under:

"26. We, accordingly, answer the
questions which have been referred to the
Full Bench in the following terms:

(1) Re Question (1): Where a person
is appointed on a compassionate basis as
a dependent member of the family of an
employee of the State who has died in
harness, such an appointment can be
made on probation. The object and
purpose of appointing a person on
probation is to determine the suitability of
the person for retention in service.
Appointment of a person who is engaged
on a compassionate basis on probation is
not contrary to law or unlawful.

(2) Re Question (2): Since an
appointment on compassionate grounds
on
probation
is
also
a
regular
appointment and a person appointed as
such
is
not
offered
a
temporary
appointment, such an appointee can be
placed on probation in the first instance.

(3)
Re
Question
(3):
The
appointment
of
a
person
on
a
compassionate basis on probation is
permissible in law."

(Emphasis added)

12. Reply to Question (2) clearly
shows
that
Full
Bench
held
that
appointment on compassionate basis is a
regular appointment and is not to be
treated as "temporary appointment". In
para 18 of judgment Full Bench clearly
observed that there is a distinction
between "appointment on probation" and
"temporary appointment". The relevant
observations read s under:

"An appointment on probation does
not detract from the nature of the
appointment which is to a regular
service.
Probation
is
merely
an
opportunity
for
the
probationer
to
establish by dint of the work which is
rendered during the period of probation,
that he or she is suitable for being
retained in service. On the part of the
employer,
probation
enables
the
appointing authority to determine the
suitability of the probationer for retention
in service. There is a well accepted
distinction
in
law
and
in
service
jurisprudence between a probationary
appointment
and
a
temporary
appointment." (Emphasis added)

13. The above authorities have been
considered and followed recently by a
Single Judge (Myself) in Vikas Mishra
vs. State of U.P. and others 2019(3)
ADJ 486.

14. Therefore, I am clearly of the
view that appointment having been made
on compassionate basis, there was no
occasion for respondents to treat the said
appointment as temporary and to proceed
for
regularization.
Exercise
of
regularization was wholly uncalled for
and unwarranted. Thus, order dated
30.3.1983 passed by Executive Engineer
appointing
petitioner
as
Temporary
Beldar, is to be treated as having been
made on substantive basis.

15. Now coming to the second
question, "when reqularization order was
already passed, whether it can be
cancelled without any show cause notice
802 INDIAN LAW REPORTS ALLAHABAD SERIES
or
opportunity,"
though
subsequent
regularization order is not of much
consequence in view of nature of
appointment, as already discussed above.

16. Any order of regularization, if
cancelled, results in civil consequence. In
similar circumstances where an order of
confirmation was cancelled without notice, a
Division
Bench
of
this
Court
in
D.N.Upadhiya and another Vs The State of
U.P. and another 1985 UPLBEC 1112,
observed in para 10 as under:

"It is, therefore, well established from
the law laid down by their Lordships that there
can be a substantive vacancy in a temporary
post also. In view of the above, the petitioners,
who were appointed as Senior Auditors
although temporary, would be deemed to have
beenappointed in a substantive capacity. Once
this position is reached, their rights have
crystallised. The petitioners were confirmed and
subsequently deconfirmed. This could not be
done, for their rights had crystallised. "

17. In view thereof, writ petition is
allowed.
Impugned
order
dated
22.07.2000 (Annexure 5 to the writ
petition) is hereby set aside.
----------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 31.01.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ- A No. 30914 OF 1991

Rajendra Singh ...Petitioner
Versus
District Assistant Registrar,Cooperative Societies
Muzaffarnagar and Ors. ...Respondents

Counsel for the Petitioner:
Sri A.Kumar, Sri Sharad Malviya.
Counsel for the Respondents:
Sri Ravi Agarwal, S.C.

A. Regulation 85 of U.P. Cooperative
Societies
Employees'
Service
Regulations,
1975-
"Deemed
Termination" of the services of the
Petitioner.
Procedure
prescribed
in
Regulations, 1975 not followed and no
order of punishment as such has been
passed-Order
talks
of
termination
though under the Rules, termination is
not a punishment and it talks of removal
or dismissal- deemed termination of
petitioner is of no legal consequence and
is a nullityand without jurisdiction. Writ
Petition allowed with costs.
 (Para 9,10,11,12,13,14) (E-3)

(Delivered by Hon'bleSudhir Agarwal, J.)

1. Heard Sri Sharad Malviya,
learned counsel for petitioner, Sri Ravi
Agarwal, learned counsel for respondentSocieties
and
perused
the
material
available on record.

2. This writ petition filed under
Article 226 of Constitution of India is
directed against order dated 09.09.1991
(Annexure-6 to the writ petition) passed
by Secretary, Shamli Sahkari KrayVikray Samiti Ltd. Gandhi Ganj, Shamli,
District
Muzaffarnagar
informing
petitioner that he has not deposited certain
funds of Cooperative Society, therefore,
should deposit dead-stock and hand over
charge
and
also
pay
the
amount
embezzled, by 12.10.1991, failing which
his services shall be deemed to have been
terminated and no separate order will be
passed.

3. Facts in brief, giving rise to the
present writ petition, are that petitioner
was appointed as Accountant in 1984 in
Shamli Sahkari Kraya Vikray Sahkari