# Ram Das v. State of U.P. and others

- **Citation:** (2006) 2 ILRA 832
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2005-11-11
- **Case number:** Civil Misc. Writ Petition No. 42344 of 2004
- **Bench:** Rakesh Tiwari
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-das-v-state-of-u-p-and-others-40610
- **Pages:** 3

## Headnote

Constitution
of
India,
Art.
21Termination
order-petitioner
was
appointed on compassionate groundafter 14 years of service termination
order passed without affording any
opportunity without giving the copy of
enquiry report-petitioner was not even in
service prior to death of his father-for
interpolation made by unknown person
is service record of the father of
petitioner held out and out illegal,
arbitrary-a right of livelihood can not be
taken away.

Held: Para 7

In the aforesaid circumstances, the
petitioner can not be penalized for any
alleged
interpolation
in
the
service
record by some unknown person. What is
the material is the fact that the father of
the petitioner died in harness. There is
no illegality in the appointment of the
petitioner
who
has
worked
in
the
department for last about 14 years when
his
services
have
suddenly
been
terminated
without
affording
an
opportunity. The impugned order of
termination is therefore out and out,
illegal, arbitrary and without reasonable
basis. A right of livelihood has accrued to
the petitioner as enshrined under Article
21 of the Constitution, which can not be
taken away without proper opportunity
of
hearing
even
otherwise
in
the
circumstances of this case.

## Text

832 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
is devoid of any merit as the creation and
abolition of the post is within the
exclusive domain of the Executive and the
Courts cannot interfere in such matters,
the petitioner cannot take the benefit of
working under the interim order of the
Court.

Both the petitions are devoid of any
merit and are accordingly dismissed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 11.11.2005

BEFORE
THE HON'BLE RAKESH TIWARI, J.

Civil Misc. Writ Petition No. 42344 of 2004

Ram Das

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Sri Manoj Mishra

Counsel for the Respondents:
Sri Prem Chandra
S.C.

Constitution
of
India,
Art.
21Termination
order-petitioner
was
appointed on compassionate groundafter 14 years of service termination
order passed without affording any
opportunity without giving the copy of
enquiry report-petitioner was not even in
service prior to death of his father-for
interpolation made by unknown person
is service record of the father of
petitioner held out and out illegal,
arbitrary-a right of livelihood can not be
taken away.

Held: Para 7

In the aforesaid circumstances, the
petitioner can not be penalized for any
alleged
interpolation
in
the
service
record by some unknown person. What is
the material is the fact that the father of
the petitioner died in harness. There is
no illegality in the appointment of the
petitioner
who
has
worked
in
the
department for last about 14 years when
his
services
have
suddenly
been
terminated
without
affording
an
opportunity. The impugned order of
termination is therefore out and out,
illegal, arbitrary and without reasonable
basis. A right of livelihood has accrued to
the petitioner as enshrined under Article
21 of the Constitution, which can not be
taken away without proper opportunity
of
hearing
even
otherwise
in
the
circumstances of this case.

(Delivered by Hon'ble Rakesh Tiwari, J.)

1. Heard counsel for the parties and
perused the record.

The father of the petitioner was an
employee of Nagar Palika Parishad,
Jalabad, Shahjahanpur. He died in harness
on 27.7.89. The petitioner was appointed
on compassionate ground on the post of
Safai Karmchari in Nagar Palika Parishad,
Jalabad, Shahjahanpur and continued in
service till 31.8.2004. On that date, the
respondent no.3, Executive Officer, Nagar
Palika Parishad, Jalabad, Shahjahanpur
terminated the services of the petitioner
without any opportunity of hearing interalia, that the father of the petitioner had
completed 60 years of age on 30.6.1988,
hence he could not be deemed to have
been in service as such the appointment
given to the petitioner on compassionate
ground was illegal.

2. The counsel for the respondents
has relied upon the averments made in the
counter
affidavit
and
submits
that
according to records the father of the
petitioner had not died in harness. He
2 All] Ram Das V. State of U.P. and others
833
submits that he or some other person in
his
interest
changed
the
date
of
superannuation of the father of the
petitioner to 30.6.1988. As a result the
father of the petitioner continued in
service
even
after
the
date
of
superannuation and the petitioner as a
consequence
got
employment
on
compassionate grounds. It is further
submitted that an enquiry was held by the
Additional District Magistrate, Jalabad,
Shahjahanpur and the services of the
petitioner were terminated on submission
of enquiry report dated 5th August, 2004.

3. The counsel for the petitioner in
rebuttal has relied upon the averments
made in paragraphs 6 and 7 of the
rejoinder affidavit wherein it is averred
that the father of the petitioner continued
in service till his death and the petitioner
was
entitled
to
be
considered
for
appointment under the Dying in Harness
Rules. It is urged that neither the
petitioner received appointment by fraud
or misrepresentation nor his services had
been terminated as a consequence of any
enquiry
conducted
against
him
for
committing any misconduct and as such,
the appointment of the petitioner can not
be termed as illegal. It is specifically
stated that the alleged enquiry by the
Additional District Magistrate and the
said enquiry report relied upon by the
counsel for the respondents was also
never served upon the petitioner and the
enquiry was conducted exparte and no
opportunity of hearing whatsoever was
afforded to the petitioner.

4. The counsel for the petitioner has
also placed the Retention and Retirement
of
Service
of
Municipal
Board
Regulations, 1965 which provides that an
employee of the Municipal Board can
continue in service up to the age of 62
years for special reasons. He has also
relied upon averments made in paragraph
9 of the rejoinder affidavit wherein it has
been stated that the petitioner can not be
penalized for the own mistake of the
department and no action whatsoever was
taken by the department for finding out
who had manipulated the service records
of the father of the petitioner.

5. It is urged that in fact the
petitioner was continued by the Municipal
Board and interpolation has been made by
the respondents themselves in the service
record of the father of the petitioner in
order to create a ground for termination of
the services of the petitioner which were
in the custody of the respondents. It is
vehemently urged that respondents are
now
stopped
from
challenging
the
appointment of the petitioner after 14
years back and that the appointment of the
petitioner was not void abinitio as alleged
by the respondents.

6. After hearing counsel for the
parties and on perusal of the record I am
of the opinion that the father of the
petitioner had actually worked till his
death and his service records were in the
custody
of
the
respondents.
The
application of the petitioner must have
been
forwarded
for
compassionate
appointment after scrutiny of the service
records of his father, hence it can be
safely concluded that till his appointment
there was no cutting or interpolation in
the date of birth of the father of the
petitioner recorded in the service book.
The petitioner was not even in service
before the date of death of his father.
Admittedly
even
according
to
the
respondents nothing could be said with
certainty as to who made interpolations,
834 INDIAN LAW REPORTS ALLAHABAD SERIES [2006
but one fact stands undisputed i.e. the
father of the petitioner had worked in the
respondents Corporation till his death.
Admittedly,
no
enquiry
has
been
conducted as to who is guilty of
interpolation. The ex-parte enquiry report
dated 5th August, 2004 has neither been
appended with the writ petition by the
respondents nor has been shown before
this Court.

7. In the aforesaid circumstances,
the petitioner can not be penalized for any
alleged interpolation in the service record
by some unknown person. What is the
material is the fact that the father of the
petitioner died in harness. There is no
illegality in the appointment of the
petitioner who has worked in the
department for last about 14 years when
his
services
have
suddenly
been
terminated
without
affording
an
opportunity. The impugned order of
termination is therefore out and out,
illegal, arbitrary and without reasonable
basis. A right of livelihood has accrued to
the petitioner as enshrined under Article
21 of the Constitution, which can not be
taken away without proper opportunity of
hearing
even
otherwise
in
the
circumstances of this case.

No other point has been argued
before me.

8. For the reasons stated above, the
writ petition is allowed and the impugned
order is quashed. Petition Allowed.
---------
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 18.07.2006

BEFORE
THE HON'BLE S.U. KHAN, J.

Civil Misc. Writ Petition No. 34387 of 2006

Satya Vrat Singh

...Petitioner
Versus
State of U.P. and others ...Respondents

Counsel for the Petitioner:
Smt. Durga Tiwari

Counsel for the Respondents:
Sri S.P. Misra
Sri V.K. Singh
S.C.

Constitution of India, Art. 226 Fisheries
Rights-settlement of 10 years lease
through
auction-for
Rs.2
Lacs-1/4th
Rs.50,000/- deposited-person belonging
the fisheries community or S.C./S.T.
participated-D.M.
set
aside
on
the
ground such settlement against the full
Bench decision-reported 2005 (99) R.D.
823-Full Bench decided on 29.9.05-G.O.
dated 23.3.06-providing settlement of
lease through public auction by actionheld-based on wrong interpretation of
Full Bench-shall not be given effectsettlement
in
question-held-perfectly
valid.

Held: Para 11

Before parting with the case it is
essential to notice the Government Order
dated 23.2.2006, shown by the learned
Standing Counsel. The said Government
Order was issued after the aforesaid Full
Bench decision of Ram Kumar. In the
said Government Order it has been
mentioned that Full Bench authority of
Allahabad High Court in its judgment
dated 29.9.2005 in Writ Petition of Ram
Kumar vs. State has held that State
Government has got a right to settle the