# Ramesh Kumar v. State of U.P. & Ors - **Citation:** (2020) 6 ILRA 836 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2020-02-06 - **Case number:** WRIT A No. 1846 of 2020 - **Bench:** Surya Prakash Kesarwani - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramesh-kumar-v-state-of-u-p-ors-45803 - **Pages:** 4 ## Headnote A. Service Law - Pension - Compassionate Appointment - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974: Rule 5 - The mere fact that an application was made when the old scheme was in force will not by itself create a right in favour of the applicant to be considered under the old scheme. (Para 14) Petitioner prayed for enforcement of provisions of Old Pension Scheme on him instead of New Pension Scheme dated 28.3.2005, which was enforced from 1.4.2005, on the ground that at the time of application for compassionate appointment, the old scheme was operative and therefore, he deserves to be considered under the old scheme. (Para 2, 14) Court held that under the Rules, 1974, there cannot be immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. (Para 12) A compassionate appointee enters in a Government service and becomes part of the cadre only when he is appointed under the Rules, 1974. Therefore, the service conditions and other benefits as applicable as on the date of his appointment shall alone be available to him and shall govern his service conditions. The Old Pension Scheme which was abolished, prior to the appointment of the petitioner shall not be applicable to the petitioner. At the time of his appointment, i.e.,15.4.2005/joining on 21.4.2005, the New Pension Scheme which came into force on 1.4.2005, was in operation. Therefore, the petitioner can get the benefit of only the New Pension Scheme and not the Old Pension Scheme, which was operative prior to 01.4.2005. (Para 13) Writ petition dismissed. (E-4) Precedent followed: ## Text 836 INDIAN LAW REPORTS ALLAHABAD SERIES (2020)06ILR A836 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 06.02.2020 BEFORE THE HON'BLE SURYA PRAKASH KESARWANI, J. WRIT A No. 1846 of 2020 Ramesh Kumar ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Paras Pandey Counsel for the Respondents: C.S.C., Sri Jay Ram Pandey A. Service Law - Pension - Compassionate Appointment - Uttar Pradesh Recruitment of Dependents of Government Servants Dying in Harness Rules, 1974: Rule 5 - The mere fact that an application was made when the old scheme was in force will not by itself create a right in favour of the applicant to be considered under the old scheme. (Para 14) Petitioner prayed for enforcement of provisions of Old Pension Scheme on him instead of New Pension Scheme dated 28.3.2005, which was enforced from 1.4.2005, on the ground that at the time of application for compassionate appointment, the old scheme was operative and therefore, he deserves to be considered under the old scheme. (Para 2, 14) Court held that under the Rules, 1974, there cannot be immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. (Para 12) A compassionate appointee enters in a Government service and becomes part of the cadre only when he is appointed under the Rules, 1974. Therefore, the service conditions and other benefits as applicable as on the date of his appointment shall alone be available to him and shall govern his service conditions. The Old Pension Scheme which was abolished, prior to the appointment of the petitioner shall not be applicable to the petitioner. At the time of his appointment, i.e.,15.4.2005/joining on 21.4.2005, the New Pension Scheme which came into force on 1.4.2005, was in operation. Therefore, the petitioner can get the benefit of only the New Pension Scheme and not the Old Pension Scheme, which was operative prior to 01.4.2005. (Para 13) Writ petition dismissed. (E-4) Precedent followed: 1. Pitta Naveen Kumar & ors. Vs Raja Narasaiah Zangiti & ors., (2006) 10 SCC 261 (Para 7) 2. S.B.I. & anr. Vs Raj Kumar, (2010) 11 SCC 661 (Para 11, 12, 14) Precedent distinguished: 1. Mahesh Narayan & ors. Vs St. of U.P. & ors., 2020 (4) ADJ 172; 2020 (2) ALJ 518 (Para 6) (Delivered by Hon'ble Surya Prakash Kesarwani, J.) 1. Heard learned counsel for the petitioner, the learned standing counsel for the State-respondent Nos.1 and 3, and learned counsel for the respondent Nos.2 and 4. 2. This writ petition has been filed praying for a direction in the nature of mandamus to the respondent-authorities to enforce the provisions of Old Pension Scheme on the petitioner and not the New Pension Scheme dated 28.03.2005, which was enforced from 01.04.2005. 3. Briefly stated, undisputed facts of the present case are that father of the petitioner Sri Bhagwan Prasad was an assistant teacher in Junior High School, 6 All. Ramesh Kumar Vs. State of U.P. & Ors. 837 Majhigawan, District Mirzapur. During tenure of his service, he died on 30.01.2005. It is alleged in paragraph-7 of the writ petition that the petitioner has filed application on 28.02.2005 for appointment under Rule 5 of Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974. However, no proof in support of the averments made in the aforesaid paragraph-7 of the writ petition, has been filed along with the writ petition. 4. The District Basic Education Officer issued an order dated 15.04.2005 for appointment of the petitioner as Assistant Teacher on compassionate ground. It is stated by the learned counsel for the petitioner that the petitioner joined on 21.04.2005. 5. Undisputedly, the appointment of the petitioner on compassionate ground was made on 15.04.2005 and as per his allegation, he joined on 21.04.2005. The Old Pension Scheme was operative prior to 30.03.2005. The New Pension Scheme was notified on 28.03.2005 and it came into force from 01.04.2005. Prior to 01.04.2005, the petitioner was not a member of the service cadre. He came in the service as Assistant Teacher on or after 15.04.2005. Therefore, Old Pension Scheme is not applicable to the petitioner. 6. The judgment in the case of WritA No.55606 of 2008 (Mahesh Narayan and others vs. State of U.P. and others), decided on 19.12.2019 is on entirely different set of facts. 7. It is settled law that a candidate does not have any legal right to be appointed. He in terms of Article 16 of the Constitution of India, has only a right to be considered therefor, vide Pitta Naveen Kumar and others vs. Raja Narasaiah Zangiti and others, (2006) 10 SCC 261 (para-32). 8. Compassionate appointment is a need based concept. Immediate financial disruption is a dominating consideration in matters on compassionate appointment, which is an exception to the general rule of appointment on merit in public employment through open invitation. 9. It is well settled that appointment on compassionate grounds is not a source of recruitment. It is an exception to the general rule that recruitment to public services should be made on the basis of merit, by an open invitation providing equal opportunity to all eligible persons to participate in the selection process. 10. The dependants of employees who died in harness, do not have any special claim or right to employment, except by way of concession, which has been extended by the State Government for dependants of deceased employee under the Uttar Pradesh Recruitment of Dependants of Government Servants Dying in Harness Rules, 1974 to enable the family of the deceased to get over the sudden finance crisis. Thus, claim for compassionate appointment is traceable only to the scheme framed by the employer for such employment and there is no right whatsoever outside such scheme. 11. An appointment under the scheme can be made only if the scheme is in force and not after it is abolished/ withdrawn. In the case of State Bank of India and another vs. Raj Kumar, 838 INDIAN LAW REPORTS ALLAHABAD SERIES (2010) 11 SCC 661 (Para-8), Hon'ble Supreme Court reiterated the aforementioned settled principles and further held that when a scheme is abolished, any pending application seeking appointment under the scheme will also cease to exist, unless saved. The mere fact that an application was made when the scheme was in force, will not by itself create a right in favour of the applicant. 12. In the case of Raj Kumar (supra) (paras-11 and 12), Hon'ble Supreme court further held that normally schemes contemplate compassionate appointment on an application by a dependent family member, subject to the applicant fulfilling the prescribed eligibility requirements, and subject to availability of a vacancy for making the appointment. The applicant has only a right to be considered for appointment against a specified quota, even if he fulfils all the eligibility criteria; and the selection is made under the Rules, 1974, subject to the eligibility for the post, verification of the eligibility and the financial capacity of the family. The appointments under the Rules, 1974 is not automatic but an applicant has to wait in a queue for a vacancy to arise, or for a selection committee to assess the comparative need of other applicants under the Rules so as to fill a limited number of earmarked vacancies. Thus, there can be immediate or automatic appointment merely on an application. Several circumstances having a bearing on eligibility, and financial condition, upto the date of consideration may have to be taken into account. 13. A compassionate appointee under the Rules, 1974 enters in government service enters in a government service and becomes part of the cadre only when he is appointed under the Rules, 1974. Therefore, the service conditions and other benefits as applicable as on the date of his appointment shall alone be available to him and shall govern his service conditions. The Old Pension Scheme which was abolished, prior to the appointment of the petitioner shall not be applicable to the petitioner. At the time of his appointment, i.e. 15.04.2005/ joining on 21.04.2005, the New Pension Scheme which came into force on 01.04.2005, was in operation. Therefore, the petitioner can get the benefit of only the New Pension Scheme and not the Old Pension Scheme, which was operative prior to 01.04.2005. 14. In the case of Raj Kumar (supra), deceased employee's mother made application dated 06.06.2005 and 14.06.2005 requesting for appointment of his son on compassionate grounds. When the applications were being processed and verified the compassionate appointment scheme was substituted by "the SBI scheme for payment of ex-gratia lump sump amount" w.e.f. 04.08.2005. The New Scheme abolished Old Scheme for compassionate appointments and needs to be provided for payment of ex-gratia lump sump amount as per its terms. The applicant took the stand that at the time of application for compassionate appointment, the old scheme was operative and therefore, he deserves to be considered under the old scheme. On these facts, Hon'ble Supreme Court held that the mere fact that an application was made when the scheme was in force will not by itself create a right in favour of the applicant. It further held that only the new scheme shall be 6 All. Sanjay Kumar Singh Vs. State of U.P. & Ors. 839 applicable and the applicant may get benefit under the new scheme and not under the old scheme. 15. For all the reasons afore-stated, I hold that the petitioner is not entitled for the benefit of old pension scheme. The writ petition is devoid of merit and is, therefore, dismissed. ---------- (2020)06ILR A839 ORIGINAL JURISDICTION CIVIL SIDE DATED: ALLAHABAD 24.02.2020 BEFORE THE HON'BLE SHAMIM AHMED, J. WRIT A No. 2776 of 2020 Sanjay Kumar Singh ...Petitioner Versus State of U.P. & Ors. ...Respondents Counsel for the Petitioner: Sri Pradeep Kumar Bhardwaj Counsel for the Respondents: C.S.C. A. Service Law - Transfer Policy - In effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. Petitioner submits that in the impugned order the place of transfer is not mentioned and the education of his son, who is studying in Class 11, will get disturbed, and he will not get admission anywhere in the mid-term. The Hon'ble Court held that the Court has limited powers u/Art. 226 to interfere in the transfer order, but issued direction to respondent to consider and decide the representation of the petitioner by passing a speaking and reasoned order. (Para 2, 5, 7, 8) Writ Petition disposed of. (E-4) Precedent followed: 1. Director of School Education Madras . & ors.Vs O. Karuppa Thevan, 1994 Supp. (2) SCC 666 (Para 3, 7) Petition challenges order dated 04.02.2020, passed by Additional Superintendent of Police, Establishment U.P. (Delivered by Hon'ble Shamim Ahmed, J.) 1. This writ petition has been filed by the petitioner with the following relief:- (i) Issue a writ, order or direction in the nature of certiorari quashing the impugned order dated 04.02.2020 passed by respondent no.6 against the petitioner only. (Annexure No.1 to this writ petition). (ii) Issue a writ, order or direction in the nature of mandamus directing the respondent no.1 to formulate a Uniform Annual transfer policy with regard to the entire police force. (iii) Issue a writ, order or direction in the nature of mandamus directing the respondents not to transfer/relieve the petitioner from his respective place of posting in pursuance of the impugned order and also direct the respondents to decide the representation of the petitioner dated 06.02.2020 within stipulated period as fixed by this Hon'ble Court. (iv) Issue any other suitable writ, order or direction which this Hon'ble Court may deem fit and proper under the facts and circumstances of the case.