# Rina v. State of U.P. & Anr

- **Citation:** (2022) 9 ILRA 207
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-15
- **Case number:** Writ A No. 6045 of 2022
- **Bench:** Rajan Roy
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rina-v-state-of-u-p-anr-48991
- **Pages:** 4

## Headnote

Law
-
Compassionate
Appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
(Dying in Harness) Rules, 1974 - Rule 5(1)
- The exception in Rule 5(1) will not come
into play where the spouse of the
deceased was not in employment on the
date of her death and was also not getting
any pension, subject, of course, to an
enquiry in this regard as to the financial
condition of the family. (Para 7)

The words 'is not already employed'
occurring in Rule 5(1) implies an existing
208 INDIAN LAW REPORTS ALLAHABAD SERIES
employment and does not cover a scenario
where the spouse has retired on the date
of death. If such retired spouse is getting
pension then this aspect can be considered
separately
while
assessing
the
financial
condition of the family, but then, in such a
situation the exception carved out in Rule 5(1)
would not be applicable. (Para 7)

Apparently
the
opposite
parties
have
misconstrued Rule 5(1), the same will have no
application where the spouse who was in
service had already retired prior to the death of
the wife. The opposite parties are under an
obligation to reconsider the claim of the
petitioner in the light of the law on the subject,
meaning thereby, they shall ascertain financial
condition of the family as to whether the
petitioner has adequate means to sustain
herself and then take a considered decision in
the light of the Full Bench decision. The
impugned order dated 22.01.2021 is quashed.
Let a fresh decision be taken within two months
from the date of receipt of certified copy of this
order. (Para 8, 9)

Writ Petition disposed of. (E-4)

Precedent followed:

## Text

9 All. Rina Vs. State of U.P. & Anr.
207

24. For the reasons stated above, it is
apparent that the Respondent has been
discriminated against in the matter of
imposition of penalty. In the facts and
circumstances of the case, the Respondent
is entitled to parity qua Shri T.K. Sharma,
Shri Mukhtar Khan and Shri Javir Ali.

25. It is a settled legal proposition,
that once the court sets aside an order of
punishment, on the ground that the inquiry
was not properly conducted, it must remit
the case concerned to the disciplinary
authority for it to conduct the inquiry from
the point that it stood vitiated, and conclude
the same.

26. That course could have been
followed even in the present case. The
matter could be remanded back to the
disciplinary authority or to the inquiry
officer for a proper inquiry and a fresh
report and order. But that course may not
have been the only course open in a given
situation. There may be situations where
because of a long time-lag or such other
supervening circumstances the writ court
considers it unfair, harsh or otherwise
unnecessary to direct a fresh inquiry or
fresh order by the competent authority. (see
Allahabad Bank v. Krishna Narayan
Tewari, (2017) 2 SCC 308)

27. In the present case, disciplinary
inquiry was initiated against the Respondent
in the year 2014. The punishment order dated
11.08.2017 was served upon him on
31.08.2017,
the
date
on
which
the
Respondent
attained
the
age
of
superannuation and retired from service. The
Respondent may by now must have turned 66
years of age. Any remand either to the inquiry
officer for a fresh inquiry or to the
disciplinary authority for a fresh order would
thus be very harsh and would practically deny
to the Respondent any relief whatsoever.
Furthermore, in light of the fact that the
Respondent has been discriminated against in
the matter of imposition of punishment, and
that he is entitled to parity qua Shri T.K.
Sharma, Shri Mukhtar Khan and Shri Javir
Ali, this Court is of the opinion that the
Tribunal has rightly exercised its discretion in
not remanding the matter back.

28. Resultantly, we do not perceive any
merit in this writ petition and the same is,
accordingly, dismissed.
----------
(2022) 9 ILRA 207
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 15.09.2022

BEFORE

THE HON'BLE RAJAN ROY, J.

Writ A No. 6045 of 2022

Rina ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
Vinod Kumar Pandey

Counsel for the Respondents:
C.S.C., Ravi Singh

A.
Service
Law
-
Compassionate
Appointment - Uttar Pradesh Recruitment
of Dependents of Government Servants
(Dying in Harness) Rules, 1974 - Rule 5(1)
- The exception in Rule 5(1) will not come
into play where the spouse of the
deceased was not in employment on the
date of her death and was also not getting
any pension, subject, of course, to an
enquiry in this regard as to the financial
condition of the family. (Para 7)

The words 'is not already employed'
occurring in Rule 5(1) implies an existing
208 INDIAN LAW REPORTS ALLAHABAD SERIES
employment and does not cover a scenario
where the spouse has retired on the date
of death. If such retired spouse is getting
pension then this aspect can be considered
separately
while
assessing
the
financial
condition of the family, but then, in such a
situation the exception carved out in Rule 5(1)
would not be applicable. (Para 7)

Apparently
the
opposite
parties
have
misconstrued Rule 5(1), the same will have no
application where the spouse who was in
service had already retired prior to the death of
the wife. The opposite parties are under an
obligation to reconsider the claim of the
petitioner in the light of the law on the subject,
meaning thereby, they shall ascertain financial
condition of the family as to whether the
petitioner has adequate means to sustain
herself and then take a considered decision in
the light of the Full Bench decision. The
impugned order dated 22.01.2021 is quashed.
Let a fresh decision be taken within two months
from the date of receipt of certified copy of this
order. (Para 8, 9)

Writ Petition disposed of. (E-4)

Precedent followed:

1. Shiv Kumar Dubey Vs St. of U.P. & ors.,
Special Appeal No. 356 of 2012, Full Bench
decision dated 06.04.2012.

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

1. There is no need to call for a
counter affidavit in the matter as the facts
as stated in the impugned order, if they are
taken on their face value, even then the
same cannot sustain.

2. Counsel for the petitioner, learned
Standing Counsel and Mr. Ravi Singh,
learned counsel for opposite party no. 2
have been heard.

3. The petitioner filed an application
seeking
compassionate
appointment
consequent to the death of her mother,
namely, Vimla, who died on 11.06.2018.
Annexure-3
is
the
death
certificate
mentioning the date of death of Vimla as
11.06.2018. The claim of the petitioner has
been denied by relying upon Rule 5 (1) of
U.P.
Recruitment
of
Dependents
of
Government Servants (Dying-in-Harness)
Rules, 1974 on the ground that husband of
late Vimla was employed as Sweeper under
UPSRTC, therefore, in view of the
exception carved out in the said Rule, the
petitioner is not entitle to compassionate
appointment. Though the said Rules are
applicable to Government Servants, but, it
appears that they have been applied in
Nagar Nigam also as this is the Rule which
is referred in the impugned order. Rule 5
reads as under:

"5. Recruitment of a member of
the family of the deceased.- (1) In case a
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government servant
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family who
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central Government or a State Government
shall, on making an application for the
purposes, be given a suitable employment
in Government service on a post except the
post which is within the purview of the
Uttar Pradesh Public Service Commission,
in relaxation of the normal recruitment
rules if such person-

(i)fulfills
the
educational
qualifications prescribed for the post,

(ii) is otherwise qualified for
government service; and
9 All. Rina Vs. State of U.P. & Anr.
209

(iii) makes the application for
employment within five years from the date
of the death of the government servant:

Provided that where the State
Government is satisfied that the time limit
fixed for making the application for
employment causes undue hardship in any
particular case, it may dispense with or
relax the requirement as it may consider
necessary for dealing with the case in a just
and equitable manner.

Provided further that for the
purpose of the aforesaid proviso, the person
concerned shall explain the reasons and
give proper justification in writing regarding
the delay caused in making the application
for employment after the expiry of the time
limit fixed for making the application for
employment along with the necessary
documents/proof in support of such delay
and the Government shall, after taking into
consideration all the facts leading to such
delay take the appropriate decision.

(2) As far as possible, such an
employment should be given in the same
department
in
which
the
deceased
Government servant was employed prior to
his death.

(3)
Every
appointment
made
under sub-rule (1) shall be subject to the
condition that the person appointed under
sub-rule (1) shall maintain other members of
the family of deceased Government servant,
who were dependent on the deceased
Government servant immediately before his
death
and
are
unable
to
maintain
themselves.

(4) Where the person appointed
under sub-rule (1) neglects or refuses to
maintain a person to whom he is liable to
maintain under sub-rule (3), his services
may be terminated in accordance with the
Uttar
Pradesh
Government
Servant
(Discipline and Appeal) Rules, 1999, as
amended from time to time."

4. Rule very clearly says that in case a
Government servant dies in harness after
the commencement of these rules and the
spouse of the deceased Government servant
is not already employed under the Central
Government or a State Government or a
Corporation owned or controlled by the
Central
Government
or
a
State
Government, one member of his family
who is not already employed under the
Central Government or a State Government
or a Corporation owned or controlled by
the Central Government
or a State
Government
shall,
on
making
an
application for the purposes, be given a
suitable
employment
in
Government
service on a post except the post which is
within the purview of the Uttar Pradesh
Public Service Commission, in relaxation
of the normal recruitment rules.

5. The impugned order itself says that
the husband of Vimla i.e. father of the
petitioner was employed as Sweeper in
Uttar
Pradesh
State
Road
Transport
Corporation and he retired on 31.12.2015
i.e. prior to the death of Vimla.

6. On a specific query being put,
learned counsel for the petitioner submitted
that the post of Sweeper in UPSRTC was
not pensionable and paltry sum of couple
thousand was paid as post retiral dues
which was inadequate for sustenance.

7. The Court finds merit in the
submission of petitioner that the exception
in Rule 5(1) will not come into play where
the spouse of the deceased was not in
employment on the date of her death and
was also not getting any pension, subject,
of course, to an enquiry in this regard as to
the financial condition of the family in the
light of the Full Bench decision dated
06.04.2014 in Special Appeal No. 356 of
210 INDIAN LAW REPORTS ALLAHABAD SERIES
2012 (Shiv Kumar Dubey vs. State of U.P.
and others). The words 'is not already
employed' occurring in Rule 5 (1) implies
an existing employment and does not cover
a scenario where the spouse has retired on
the date of death. If such retired spouse is
getting pension then this aspect can be
considered separately while assessing the
financial condition of the family, but then,
in such a situation the exception carved out
in Rule 5(1) would not be applicable.

8. Apparently the opposite parties
have misconstrued Rule 5 (1), the same
will have no application where the spouse
who was in service had already retired prior
to the death of the wife. The opposite
parties
are
under
an
obligation
to
reconsider the claim of the petitioner in the
light of the law on the subject, meaning
thereby, they shall ascertain financial
condition of the family as to whether the
petitioner has adequate means to sustain
herself and then take a considered decision
in the light of the aforesaid Full Bench
decision.

9. The impugned order dated
22.01.2021 is quashed. Let a fresh decision
be taken within two months from the date
of receipt of certified copy of this order.

10. It is open for the opposite parties
to verify as to whether the father of the
petitioner was receiving any pension or had
received any other post retiral dues, if so,
what was the amount in this regard.

11. The writ petition is disposed of.
----------

(2022) 9 ILRA 210
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2022
BEFORE

THE HON'BLE MRS. SANGEETA CHANDRA, J.

Writ A No. 10089 of 2020

Sanjay Kumar Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Abhishek Rai

Counsel for the Respondents:
C.S.C.

A. Service Law - Transfer - Administrative
exigencies - Punitive in nature, how far
ground to quash it - Somesh Tiwari's case
relied upon - Employer is entitled to pass
an order of transfer in administrative
exigencies but an order of transfer cannot
be passed by way of, or in lieu of
punishment and that when an order of
transfer is passed in lieu of punishment,
the same is liable to be set aside being
wholly illegal - High Court found the
transfer order passed not in lieu of or by
way of any punishment. (Para 22 and 23)
Writ petition dismissed. (E-1)
List of Cases cited:-

1. Somesh Tiwari Vs U.O.I. & ors.; AIR 2009 SC
1399

(Delivered by Hon'ble Mrs. Sangeeta
Chandra, J.)

1. The petitioner has challenged the
order dated 13.07.2020 passed by State
Radio Officer (Administration), U.P. Police
Radio Headquarter, Mahanagar, Lucknow,
as well as the relieving orders dated
14.07.2020 and 15.07.2020 passed by
Radio Inspector, Gyanvapi, Varanasi. The
petitioner has also challenged the order
dated 07.10.2020 passed by Additional