# Rawan Awasthi v. State of U.P. & Ors

- **Citation:** (2022) 5 ILRA 978
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-04
- **Case number:** WRIT A No. 6640 of 2021
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rawan-awasthi-v-state-of-u-p-ors-48616
- **Pages:** 5

## Headnote

Law
-
Compassionate
Appointment
-
U.P.
Recruitment
Dependents
of
Government
Servants
Dying in Harness (Fifth Amendment),
Rules 1999 - The petitioner completed her
intermediate from C.B.S.E. Board prior to
02.05.2019 as the marksheet for the said
examination issued by C.B.S.E. bears the said
date and she applied for compassionate
appointment thereafter on 30.09.2019. In fact,
the petitioner on the date of death of her
mother was less than sixteen years of age,
therefore, she could not possibly apply for
compassionate appointment. Para 3(8) of the
G.O. dated 04.09.2000, itself permits
submission of such applications within
five years from the date of death of the
deceased employee. One of the objects of
such provision is to enable a dependent
who is otherwise minor, may be slightly
below the age of majority, so that he or
she
may
not
be
deprived
of
such
compassionate appointment and may not
have
to
undergo
the
consequential
financial
deprivation.
Therefore,
the
provision in para 3(5) does not appear to
be reasonable by any standards. (Para 8)

The provision contained in para no. 3(5) of
the aforesaid GO is patently unreasonable
and hit by Art. 14 of the Constitution of
5 All. Rawan Awasthi Vs. State of U.P. & Ors.
979
India. However, instead of quashing the said
provision, the ends of justice would suffice if the
words are read down to mean that the
dependent of the deceased employee who
applies for compassionate appointment should
possess the minimum educational qualification
prescribed for the post in question on the date
of submission of such application or on the date
of being considered for selection but within the
time limit prescribed by para 3(8) of the said GO
dated 04.09.2000, otherwise the provision
would not stand the test of Article 14 of the
Constitution of India. This will protect it from
being declared unconstitutional. (Para 9)

In view of the above clarification of law on
the subject, the impugned orders dated
04.12.2019 and 27.08.2020 are quashed.
The claim of the petitioner shall now be
reconsidered
for
compassionate
appointment for a clerical post in the light
of the aforesaid, subject to availability of
vacancy and the decision taken shall be
communicated to the petitioner within three
months. If there is no vacancy on a clerical post
then the claim of the petitioner shall be
considered
for
compassionate
appointment
against a Class-IV post. (Para 9)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 04.12.2019 as well as order dated
27.08.2020, to the extent it denies to give
appointment on a Group - C post.

## Text

978 INDIAN LAW REPORTS ALLAHABAD SERIES
507]
and
'Chairman
Indore
Vikas
Pradhikaran Vs. Pure Industrial Coke
and Chemicals Limited' reported in [2007
(8) SCC 705].

11. I have perused the report of the
committee. The said report is only
recommendatory
in
nature.
There
is
nothing to show that the same was ever
accepted and enforced, at any point of time.
There is nothing to show that while drafting
or enforcing the applicable rules, the State
Government ever relied upon the said
report or referred to any Indian calendar.
The use of the month of July in rules itself
shows that rules refer to the British
calendar and not to an Indian calendar.
Therefore, the term 'calendar year' in which
the vacancies are advertised is the year
from the 1st of January to 31st December
and, it is the first day of July of the said
calendar year on which the person should
not have attained the age of more than 40
years. The same in the present case is 2022
as the vacancies were advertised on
05.01.2022.

12. So far as the judgments relied
upon the learned counsel for petitioner are
concerned, I have perused both the
judgments. The same are not applicable to
the facts of the present case, as they are on
entirely different facts.

13. No other submissions were made
by learned counsel for petitioner.

14. Thus, there is no force in the
submissions
of
learned
counsel
for
petitioner.

15. The writ petition is dismissed.
----------
(2022)05ILR A978
APPELLATE JURISDICTION
CIVIL SIDE
DATED LUCKNOW 04.05.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

WRIT A No. 6640 of 2021

Rawan Awasthi ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant
Sri Vijay Kumar Srivastava, Sri Shailendra
Kumar Dubey

Counsel for the Respondents:
C.S.C., Sri Ajay Kumar

A.
Service
Law
-
Compassionate
Appointment
-
U.P.
Recruitment
Dependents
of
Government
Servants
Dying in Harness (Fifth Amendment),
Rules 1999 - The petitioner completed her
intermediate from C.B.S.E. Board prior to
02.05.2019 as the marksheet for the said
examination issued by C.B.S.E. bears the said
date and she applied for compassionate
appointment thereafter on 30.09.2019. In fact,
the petitioner on the date of death of her
mother was less than sixteen years of age,
therefore, she could not possibly apply for
compassionate appointment. Para 3(8) of the
G.O. dated 04.09.2000, itself permits
submission of such applications within
five years from the date of death of the
deceased employee. One of the objects of
such provision is to enable a dependent
who is otherwise minor, may be slightly
below the age of majority, so that he or
she
may
not
be
deprived
of
such
compassionate appointment and may not
have
to
undergo
the
consequential
financial
deprivation.
Therefore,
the
provision in para 3(5) does not appear to
be reasonable by any standards. (Para 8)

The provision contained in para no. 3(5) of
the aforesaid GO is patently unreasonable
and hit by Art. 14 of the Constitution of
5 All. Rawan Awasthi Vs. State of U.P. & Ors.
979
India. However, instead of quashing the said
provision, the ends of justice would suffice if the
words are read down to mean that the
dependent of the deceased employee who
applies for compassionate appointment should
possess the minimum educational qualification
prescribed for the post in question on the date
of submission of such application or on the date
of being considered for selection but within the
time limit prescribed by para 3(8) of the said GO
dated 04.09.2000, otherwise the provision
would not stand the test of Article 14 of the
Constitution of India. This will protect it from
being declared unconstitutional. (Para 9)

In view of the above clarification of law on
the subject, the impugned orders dated
04.12.2019 and 27.08.2020 are quashed.
The claim of the petitioner shall now be
reconsidered
for
compassionate
appointment for a clerical post in the light
of the aforesaid, subject to availability of
vacancy and the decision taken shall be
communicated to the petitioner within three
months. If there is no vacancy on a clerical post
then the claim of the petitioner shall be
considered
for
compassionate
appointment
against a Class-IV post. (Para 9)

Writ petition allowed. (E-4)

Present petition challenges the order
dated 04.12.2019 as well as order dated
27.08.2020, to the extent it denies to give
appointment on a Group - C post.

(Delivered by Hon'ble Rajan Roy, J.)

1. Heard Sri Vijay Kumar Srivastava,
learned counsel for the petitioner, Sri Vivek
Shukla, learned Additional C.S.C. and Sri
Ajay Kumar, learned counsel for the B.S.A.

2. By means of this petition, the
petitioner has prayed for the following
relief (s):

"(I) A writ, order or direction in
the nature of Certiorari thereby quashing
the impugned order dated 04.12.2019 as
well as the order dated 27.08.2020, passed
by the opposite party No. 3, to the extent it
denies to give appointment on a Group-C
Post, contained as Annexure No. 1 and 2 to
this writ petition.

(IA) a writ order or direction in
the nature of Certiorari thereby quashing
the Government Order dated 04.09.2000 to
the extent it provides for attaining the
educational qualification on the date of
death of deceased employee, which is
contained as annexure no.11 to the writ
petition.

(II) A writ, order or direction in
the nature of Mandamus thereby directing
the opposite parties to provide appointment
to the petitioner on Group-C Post under
Dying-In-Harness Rules 1974.

(III) Any other order or direction
may also be passed which the Hon'ble
Court deems fit and proper under the facts
and circumstances of the case.

3. The petitioner's mother was an
Assistant Teacher at Primary School,
Bhagginivada, Block-Shivrajpur, Kanpur
Nagar. She died-in-harness on 07.10.2016.
The applicant-petitioner who was at that
time studying in intermediate after having
passed
the
high
school
applied
for
compassionate appointment on 30.09.2019
after completing her intermediate. The
claim has been rejected vide orders of
B.S.A., Kanpur Nagar dated 04.12.2019
and 27.08.2020 on the ground that as per
Government Order dated 04.09.2000, the
person
applying
for
compassionate
appointment should have the requisite
qualification for the post on the date of
death of the deceased employee. It is
worthwhile to mention that on the date of
her mother's death, the petitioner was aged
980 INDIAN LAW REPORTS ALLAHABAD SERIES
one month less than sixteen years, her date
of birth being 20.11.2000. Para no.5 of the
writ petition is relevant in this regard. The
high school marksheet also discloses the
aforesaid fact, copy of which is annexed as
Annexure no.6 to the petition.

4. The State has not filed any counter
affidavit inspite of order dated 28.07.2021
and subsequent orders dated 16.08.2021,
06.09.2021 and 21.09.2021. The Court,
therefore, proceeds to decide the matter.

5. When the Court peruses the
Government Order dated 04.09.2000, it
finds that in para no.3 (5), the following
provision has been made:-

‟(5)
ऐसे
मृतक
आभश्रत
जो,
सम्बन्धित कमशचारी की मृत्यु के भदनाूंक को
मृतक आभश्रत के रुप में सेवायोजन के भलये
न्य नतम र्ैभक्षक अहशता इण्टरमीभडएट अथवा
उससे अभधक रखते होूं और बेभसक भर्क्षा
पररषद के अधीन अधीनस्थ स्तरोूं पर भलभपक के
सम्वगश के सबसे नीचे के पद पर सेवायोजन के
भलये अन्यथा अहश होूं, को सम्बन्धित जनपद के
भलभपक के fjDr पद के सापेक्ष्य सूंवगश में सबसे
नीचे के पद पर सेवायोजन प्रदान भकया जायेगा।

जनपद में fjDr भलभपक के पद पर
मृतक आभश्रत के रुप में सेवायोजन के भलए
izkIr समस्त आवेदन पत्रोूं को प्रथम आगत
प्रथम iznRr के आधार पर पूंजीकृत भकया
जायेगा तथा भविाग के fjDr होने वाले पदोूं के
सापेक्ष्य प्रथम आगत प्रथम iznRr के भनयम का
पालन lqfuf'prकरते हुए सेवायोजन प्रदान भकया
जायेगा। fu;qfDrप्राभधकारी तदनुसार मृतक
आभश्रत अभ्यभथशयोूं की स ची को प्रत्येक माह के
प्रारम्भ में अपने कायाशलय के स चना पटल पर
प्रदभर्शत करेंगे और प्रत्येक माह होने वाली
fjfDrके सापेक्ष्य सेवायोभजत मृतक आभश्रत का
नाम प्रदभर्शत करते हुए mDr स ची का तदनुसार
सूंर्ोभधत कर अगले माह के प्रारम्भ में
अद्यावभधक सूंर्ोभधत स ची कायाशलय में स चना
पटल पर प्रदभर्शत करते रहेंगे। तृतीय श्रेणी के
fjDr पद के सापेक्ष्य मृतक आभश्रत सेवायोजन के
भलए प्रत्येक अभ्यथी के नामfu;qfDr प्राभधकारी
के कायाशलय में पूंजीकृत होने की भतभथ से पाूंच
वषश की अवभध प री होने के माह के अूंभतम कायश
भदवस तक यभद प्रथम आगत प्रथमiznRr के
भसद्धान्त के अनुसार सेवायोजन हेतु श्रेणी तीन
की ररन्धक्त उपलब्ध नहीूं होती तो सम्बन्धित
अभ्यथी का नाम पूंजीकृत अभ्यभथशयोूं की स ची से
भनकाल भदया जायेगा भकन्तु इस अवभध से प वश
यभद श्रेणी चार के fjDr पद/अभधसूंख्य पद के
सापेक्ष्य सेवायोजन हेतु अपना सूंर्ोभधत आवेदन
पत्र fu;qfDr प्राभधकारी के कायाशलय में पूंजीकृत
करा लें तो उस पर भवचार भकया जायेगा।

मृतक आभश्रत पररवार की कभठन
पररन्धस्थभतयोूं को दृभष्टगत रखते हुए यभद कोई
अभ्यथी, भलभपक सूंवगश के पद की fjfDr के
सापेक्ष्य सेवायोजन में, सम्भाभवत भवलम्ब को,
दृभष्टगत रखते हुए यभद तत्काल सेवायोजन की
आवश्यकता अनुिव करता हो तो भनयुन्धक्त
प्राभधकारी के भलए ऐसे अभ्यभथशयोूं के सम्बि में
चतुथश श्रेणी में fjDr या अभधसूंख्य पदोूं के सापेक्ष्य
मृतक आभश्रत के पुनरीभक्षत आवेदन पत्र प्रस्तुत
करने पर सेवायोजन करने का अभधकार होगा।
यहााँ यह स्पष्ट भकया जाता है भक एक बार मृतक
आभश्रत के रुप में iznRr सेवायोजन की सुभवधा
पर पुनशभवचार का कोई अवसर नहीूं रहेगा। ̋

6. Para no.3 (8) of the same
Government Order reads as under:-

‟(8) मृतक आभश्रत द्वारा सम्बन्धित
कमशचारी के मृत्यु के भदनाूंक से पाूंच वषश के
िीतर सेवायोजन के भलए आवेदन प्रस्तुत भकया
जा सकता है। परन्तु जहााँ राज्य सरकार को यह
5 All. Rawan Awasthi Vs. State of U.P. & Ors.
981
समाधान हो जाये भक सेवायोजन के भलए
आवेदन करने के भलए भनयत समय सीमा से
भकसी भवभर्ष्ट मामले में, अनुभचत कभठनाई होती
है वहााँ वह अपेक्षाओूं को, भजन्हें वह मामलें में
न्यायसूंगत और साम्यप णश रीभत से कायशवाही
करने के भलए आवश्यक समझे, अभियुक्त या
भर्भथल कर सकती हैं। भनयमोूं से इस आर्य की
vfHkeqfDr/भर्भथलीकरण के सम्बि में प्रस्ताव
सम्बन्धित भनयुन्धक्त प्राभधकारी द्वारा भर्क्षा
भनदेर्क (बे०) के माध्यम से र्ासन को प्रेभषत
भकये जायेंगे।"

7. Sub-para-(8) of para (3) of the
aforesaid Government Order permits filing
of such application for compassionate
appointment within five years from the date
of death of the deceased employee. In
suitable cases, this time period can also be
extended by the State Government. Para
3(1) of the aforesaid Government Order
refers
to
the
U.P.
Recruitment
of
Dependents of Government Servants Dying
in Harness (Fifth Amendment), Rules, 1999
and
makes
provision
for
the
basic
education schools accordingly. On a
conjoint reading of various provisions
contained in the Government Order dated
04.09.2000 especially para 3(5) and 3(8),
there can be no rational and intelligible
criteria for a condition such as the one
mentioned in para 3(5) for providing
compassionate
appointment
to
such
dependents of a deceased employee who
possess the minimum qualification of
intermediate or above for such employment
as on the date of death of the deceased
employee, meaning thereby, those not
being the required qualification on the date
of death of the deceased employee would
not be considered for compassionate
appointment The object of such a provision
for providing compassionate appointment
is to enable the family of the deceased
employee to tied-over the financial crisis as
has already been held in a catena of
decisions. What if a dependent of the
deceased employee acquires the minimum
educational qualification prescribed for a
particular post subsequent to date of death
of the deceased employee and within the
period of five years during which he/she
can
move
such
application
for
compassionate appointment. If in such
eventuality, he/ she is to be denied
consideration
for
compassionate
appointment, it will be highly unreasonable
and will defeat to the object sought to be
achieved. In fact, in the 1974 Rules, as
applicable to government servants, there is
no such embargo. The provision for
compassionate appointment in basic school
has been brought about on similar lines as
the
1974
Rules
applicable
to
the
government servants as amended in 1999
as already referred hereinabove and as is
mentioned in para 3(1) of the Government
Order dated 04.09.2000. Now, when the
Court peruses the aforesaid rules of 1974 as
amended in 1999, Rule (5) of the aforesaid
Rules, 1974 it does not contain any such
stipulation
that
the
educational
qualification should be fulfilled by such
dependent of a deceased employee on the
date of death of the deceased.

8. The petitioner completed her
intermediate from C.B.S.E. Board prior to
02.05.2019 as the marksheet for the said
examination issued by C.B.S.E. bears the
said date and she applied for compassionate
appointment thereafter on 30.09.2019. In
fact, the petitioner on the date of death of
her mother was less than sixteen years of
age, therefore, she could not possibly apply
for compassionate appointment. Para 3(8)
of the aforesaid G.O. itself permits
submission of such applications within five
years from the date of death of the
982 INDIAN LAW REPORTS ALLAHABAD SERIES
deceased employee. One of the objects of
such provision is to enable a dependent
who is otherwise minor, may be slightly
below the age of majority, so that he or she
may not be deprived of such compassionate
appointment and may not have to undergo
the consequential financial deprivation.
Therefore, the provision in para 3(5) does
not appear to be reasonable by any
standards.

9. Considering the aforesaid, the
provision contained in para no.3(5) of the
aforesaid Government Order is patently
unreasonable and hit by Article 14 of the
Constitution of India. However, instead of
quashing the said provision, the ends of
justice would suffice if the words "(5) ऐसे
मृतक आभश्रत जो, सम्बन्धित कमशचारी की मृत्यु
के भदनाूंक को मृतक आभश्रत के रुप में
सेवायोजन के भलये न्य नतम र्ैभक्षक अहशता
इण्टरमीभडएट अथवा उससे अभधक रखते होूं
..." are read down to mean that the
dependent of the deceased employee who
applies for compassionate appointment
should possess the minimum educational
qualification prescribed for the post in
question on the date of submission of such
application or on the date of being
considered for selection but within the time
limit prescribed by para 3(8) of the said
Government
Order
dated
04.09.2000,
otherwise the provision would not stand the
test of Article 14 of the Constitution of
India. This will protect it from being
declared unconstitutional. The Government
Order shall now be read, understood and
applied accordingly. In view of the above
clarification of law on the subject, the
impugned orders dated 04.12.2019 and
27.08,2020 are quashed. The claim of the
petitioner shall now be reconsidered for
compassionate appointment for a clerical
post in the light of the aforesaid, subject to
availability of vacancy and the decision
taken shall be communicated to the
petitioner within three months. If there is
no vacancy on a clerical post then the claim
of the petitioner shall be considered for
compassionate
appointment
against
a
Class-IV post.

10. Accordingly, the writ petition is
allowed in the aforesaid terms.
----------
(2022)05ILR A982
APPELLATE JURISDICTION
CIVIL SIDE
DATED LUCKNOW 07.05.2022

BEFORE

THE HON'BLE VIVEK CHAUDHARY, J.

WRIT A No. 2555 of 2022

Prakash Chandra Agarwal ...Appellant
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Appellant
Sri Gaurav Mehrotra, Sri Akber Ahmed

Counsel for the Respondents:
C.S.C.

A. Service Law - Disciplinary Inquiry - U.P.
Government
Servants
(Discipline
and
Appeal) Rules, 1999 - Rule 7 - It is not
merely the duty of the inquiry officer to
comply with the Rule-7 but also the duty
of the punishing authority, while passing
order of punishment, to ensure that the
inquiry is conducted as per the procedure
prescribed. (Para 6)

In the present case, admittedly, there is
violation of Rule-7 as the documents relied upon
by the inquiry officer were never provided to the
petitioner nor the inquiry is conducted following
the procedure prescribed under Rule-7, i.e., by
summoning the witnesses of the department,
giving chance of cross examination, providing