# S.P. Kapoor v. State of H.P. & others

- **Citation:** (2008) 1 ILRA 108
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2006-04-04
- **Bench:** S. Rafat Alam, Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/s-p-kapoor-v-state-of-h-p-others-41240
- **Pages:** 3

## Headnote

Servant Dying in Harness Rules, 1974Rule-2
(c)-word
'family'-provision
inclusive-daughter-in-law-held-
within
the definition of family-after death of her
father-in-law if no other heir surviveentitled for compassionate appointmentheld-learned
Single
Judge
rightly
accepted the claim.

Held: Para 6

In this view of the matter, the daughter
in law, who becomes a member of the
family of her husband, in our view, is
included in the definition of 'family' of
father in law and after his death, in the
1 All] Zila Panchayat Kaushambi and another V. Lalti Devi and another
109
absence of any other legal heir, she is
entitled
to
claim
compassionate
appointment
provided
all
other
conditions as required in law for such
recruitment are fulfilled. We make it
clear that the aforesaid right of daughter
in law would not be available, if she has
remarried or repatriated to her parents
place and in such case the position
would be different. However, we need
not to go into this aspect further in detail
since the Hon'ble Single Judge vide
judgment under appeal has passed an
innocuous order directing the petitioners
to consider the claim of respondent no.1
in the light of the judgment of the
Hon'ble Single Judge in Sanyogita Rai Vs.
State of U.P. (2006(2) UPLBEC 1972.
Learned counsel for the appellants could
not point out, on facts, that the aforesaid
judgment has no application to the facts
of the present case. Thus, we do not find
any legal or factual error in the judgment
of the Hon'ble Single Judge.
Case law discussed:
1999 ACJ-545, 2000 (2) ESC-967, 2006 (2)
UPLBEC-1972

## Text

108 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
the promotions are made in the same
selection. At the moment, respondent no.
4 could claim the relief provided he was
appointed with effect from the date
petitioners had been appointed i.e. 03-051983. Respondent no. 4 was given
promotion w.e.f. 06-08-1985.

7. The respondent no. 4 had filed
writ petition seeking his promotion from
03-05-1983 i.e. the date from which the
petitioners had been promoted claiming
that petitioners were junior to him in tile
feeding cadre. The writ petition has been
dismissed and relief prayed for had been
denied by the Court for reasons recorded
in the judgement. It is not open to the
authority to nullify the said judgement
and order by sitting in appeal over the
same.

8. It is settled legal proposition that
a person cannot be granted seniority from
a date prior to his birth in the cadre. In Dr.
S.P. Kapoor Vs. State of H.P. & others,
(1981) 4 SCC 716; Shitala Prasad Shukla
Vs. State of .UP & Others, AIR 1986 SC
1859, the Apex Court held that a person
cannot claim seniority over and above the
persons
lawfully
appointed
in
the
mainstream prior to his joining in the said
cadre.

9. In view of the above whatever
might be the interpretation of the Rules
1985, any order granting seniority to the
said respondent no. 4 over and above the
petitioners would amount to granting
promotion from the date the petitioners
had been so promoted (even if notionally)
which as already recorded above would
be contrary to the judgement of this Court
dated 23-02-1992, and hence legally not
permissible. An issue which has attained
finality cannot be re-opened in collateral
proceeding.

10. In view of the above, the petition
succeeds and is allowed. The impugned
order dated 04th April, 2006 is hereby
quashed.

No order as to costs.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.11.2007

BEFORE
THE HON'BLE S. RAFAT ALAM, J.
THE HON'BLE SUDHIR AGARWAL, J.

Special Appeal No. [1000] of 2007

Zila Panchayat, Kaushambi and another

...Appellants
Versus
Lalti Devi and another ...Respondents

Counsel for the Appellants:
Sri Ramendra Pratap Singh

Counsel for the Respondents:
Sri Akhileshwar Singh
S.C.

U.P. Recruitment of Dependent of Govt.
Servant Dying in Harness Rules, 1974Rule-2
(c)-word
'family'-provision
inclusive-daughter-in-law-held-
within
the definition of family-after death of her
father-in-law if no other heir surviveentitled for compassionate appointmentheld-learned
Single
Judge
rightly
accepted the claim.

Held: Para 6

In this view of the matter, the daughter
in law, who becomes a member of the
family of her husband, in our view, is
included in the definition of 'family' of
father in law and after his death, in the
1 All] Zila Panchayat Kaushambi and another V. Lalti Devi and another
109
absence of any other legal heir, she is
entitled
to
claim
compassionate
appointment
provided
all
other
conditions as required in law for such
recruitment are fulfilled. We make it
clear that the aforesaid right of daughter
in law would not be available, if she has
remarried or repatriated to her parents
place and in such case the position
would be different. However, we need
not to go into this aspect further in detail
since the Hon'ble Single Judge vide
judgment under appeal has passed an
innocuous order directing the petitioners
to consider the claim of respondent no.1
in the light of the judgment of the
Hon'ble Single Judge in Sanyogita Rai Vs.
State of U.P. (2006(2) UPLBEC 1972.
Learned counsel for the appellants could
not point out, on facts, that the aforesaid
judgment has no application to the facts
of the present case. Thus, we do not find
any legal or factual error in the judgment
of the Hon'ble Single Judge.
Case law discussed:
1999 ACJ-545, 2000 (2) ESC-967, 2006 (2)
UPLBEC-1972

(Delivered by Hon'ble S. Rafat Alam. J.)

1. This intra Court appeal, under the
Rules of the Court, is preferred against the
judgment of the Hon'ble Single Judge
dated 9.2.2007 in Civil Misc. Writ
Petition No. 7273 of 2007.

2. We have heard learned counsel
for the appellants, Mr. Akhileshwar
Singh, learned counsel appearing for
respondent no.1, and the learned Standing
Counsel for the State respondent no.2.

3. It appears that respondent no.1,
Smt. Lalti Devi, filed the aforesaid writ
petition for issuance of a writ of
mandamus commanding the appellants to
provide her compassionate appointment
under the U.P. Recruitment Departments
of
Government
Servants
Dying
in
Harness Rules, 1974 (hereinafter referred
to as the Rules). It further that the request
of the petitioner-respondent no.1 was not
accused to by the appellant, on the
ground, that the daughter in law does not
come within the meaning of 'family' as
mentioned in the Government Order
relating to compassionate appointment.

4. Learned counsel for the appellant
tried to argue that the definition of 'family'
contained in Rule 2(c) is exhaustive
though we do not find any substance
therein. From a bare reading thereof, it is
evident that the said definition is inclusive
and it is reproduced as under:

"2(c) "family" shall include the
following relations of the deceased
Government servant;
(i) Wife or husband;
(ii) Sons;
(iii) Unmarried and widowed daughters;"

5. We are fortified in taking the
aforesaid view that Rule 2(c) is inclusive
from the Division Bench judgment of this
Court in the case of State of U.P. VS.
Rajendra Kumar & others reported in
1999 All. Civil Journal, 545. Similar
view has been taken by the Hon'ble Single
Judge in the case of Manoj Kumar
Saxena vs. The District Magistrate
Bareilly & others, reported in 2000(2)
E.S.C. 967 (All) and in Smt. Urmila
Devi vs. U.P. Power Corporation Ltd.
reported in 2004 (2) E.S.C. (All) 180 and
we are in respectful agreement with the
view expressed therein. Learned counsel
for the appellant could not show that the
aforesaid rules are not applicable to Zila
Panchayat and on the contrary the G.O.
No. U.O.-113D/33-2-32-B(1)/84 dated 5th
July,1984 and G.O. No.58661/33-2-2005
dated 2.12.2005 show that for the purpose
110 INDIAN LAW REPORTS ALLAHABAD SERIES [2008
of
compassionate
appointment
the
decision was taken and 1974 Rules have
been made applicable to the employees of
Zila Panchayat. However, the aforesaid
Rules have been made applicable only to
such employees, who are not within the
purview of the Commission.

6. In this view of the matter, the
daughter in law, who becomes a member
of the family of her husband, in our view,
is included in the definition of 'family' of
father in law and after his death, in the
absence of any other legal heir, she is
entitled
to
claim
compassionate
appointment provided all other conditions
as required in law for such recruitment are
fulfilled. We make it clear that the
aforesaid right of daughter in law would
not be available, if she has remarried or
repatriated to her parents place and in
such case the position would be different.
However, we need not to go into this
aspect further in detail since the Hon'ble
Single Judge vide judgment under appeal
has passed an innocuous order directing
the petitioners to consider the claim of
respondent no.1 in the light of the
judgment of the Hon'ble Single Judge in
Sanyogita Rai Vs. State of U.P. (2006(2)
UPLBEC 1972. Learned counsel for the
appellants could not point out, on facts,
that the aforesaid judgment has no
application to the facts of the present case.
Thus, we do not find any legal or factual
error in the judgment of the Hon'ble
Single Judge.

7. The appeal, being without merit,
is dismissed.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.01.2006

BEFORE
THE HON'BLE RAVINDRA SINGH, J.

Criminal Misc. Bail Application No. 2270 of
2008

Ravi Prakash Singh @ Kakkoo

...Applicant (In Jail)
Versus
State of U.P.

...Opposite Party

Counsel for the Applicant:
Sri Somesh Khare
Smt. Komal Khare

Counsel for the Opposite Party:
Sri Kamal Krishna
A.G.A.

Code of Criminal Procedure-Section 439Grant of Bail-offence under Section 302,
201-specific role of causing injury-FIR
promptly lodged-prosecution story fully
corborated by post mortem examinationnot deserve for bail.

Held: Para 6

Considering the facts, circumstance of
the case, submissions made by learned
counsel for the applicant, learned A.G.A.
and learned counsel for the complainant,
and without expressing any opinion on
the merit of the case the applicant is not
entitled for ball, because the role of
causing injuries to the deceased is
assigned to the applicant also. The FIR
was promptly lodged. The prosecution
story is fully corroborated by the post
mortem examination report, therefore,
the applicant does not deserve for bail,
the prayer for bail is refused.