# Sandeep Kumar Yadav v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 48
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-05-12
- **Case number:** Writ A No. 17252 of 2021
- **Bench:** Siddharth Varma
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sandeep-kumar-yadav-v-state-of-u-p-ors-48802
- **Pages:** 4

## Headnote

Law
-
Regularisation
-
Compassionate
Appointment
-
U.P.
Collection Peons' Service Rules, 2004; U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974: Rule 2(a) - Mere inaction on
the part of the State will not deny the
benefit of right which accrued on account
of the Regularization rules. The advantage
which the petitioner would have got, had the
petitioner's father been regularized before his
6 All. Sandeep Kumar Yadav Vs. State of U.P. & Ors.
49
death, should have been extended to the
petitioner. (Para 8)

The petitioner's father was considered to be a
fit case for being regularized on 22.02.2019.
However, in between, on 30.11.2017, he died.
The petitioner thereafter prayed for an
appointment under the U.P. Recruitment of
Dependants of Government Servants Dying in
Harness Rules, 1974 on 06.03.2019. By the
impugned order dated 19.09.2020, the claim
of the petitioner has been refused by saying
that the petitioner's father was not a regular
Government servant as has been defined in
the Dying in Harness Rules and therefore,
petitioner was not entitled for getting an
appointment under the said Rules. (Para 1, 2,
4)

Hon'ble Court observed that a list of peons
who were to be regularized was issued on
24.12.2016 in which the petitioner's father
was shown at Serial No. 9. However, since
the petitioner's father was above 45 years of
age, outright regularisation was not done but
a permission was sought from the State
Government for the relaxation of age. The
State Government relaxed the age of the
petitioner's father and considered him to be
a
fit
case
for
being
regularized
on
22.02.2019.

When the matter w.r.t. age relaxation had
been forwarded to the Additional Chief
Secretary,
Revenue
Department,
Government of Uttar Pradesh, Lucknow
much before the father of the petitioner
had died, then the case of the petitioner
could not be jeopardized simply because
the age relaxation was conveyed to the
District Magistrate on 22.02.2019 i.e. after
the
petitioner's
father
had
died
on
30.11.2017. The petitioner ought to be
given the advantage which would have
accrued to him. Had the State acted with
alacrity, the District Magistrate could have
passed the order on the age relaxation of
the petitioner's father before his death.
(Para 7)

Writ petition partly allowed.(E-4)

Precedent followed:

## Text

48 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2008, he may pass an order of
transfer, but the transfer would become
effective in case of inter district transfer not
being a mutual transfer from the first day of
the new session so that teacher may join at
transferred school on first day of session,
so that studies of students may not suffer
for want of teacher.

34. Now, so far as the third ground that
the petitioners have obtained less marks than
the cut-off marks for transfer to their choice
district is concerned, the said contention is
also misconceived for the reason that the
mutual inter-district transfer are exceptions
and perhaps for that reason, stipulation of
minimum length of service in para 2(1)(a) of
the Government Order dated 02.12.2019 has
been waived in the case of mutual transfer,
therefore, the denial of the mutual transfer on
the ground that the petitioners secured less
marks than the cut-off marks has no nexus
with the object sought to be achieved while
considering the application of mutual transfer.

35. In such view of the fact, this Court
finds that the denial of mutual inter-district
transfer to the petitioners are illegal and
arbitrary.

36. It is pertinent to note that this Court
is conscious of the fact that the Court should
not issue mandamus where the power is
vested with the authorities to exercise such
discretion in accordance with Rules, but in
the instant case the counter affidavit has been
filed stating therein the grounds on which the
transfer application of the petitioners for
mutual transfer were not considered which
are not found to be not sustainable in law by
this Court for the reasons stated above. Thus
in such view of fact, this Court does not find
it to be a fit case to relegate the matter to the
competent authority to decide the matter
afresh.

37. In such view of the fact, this Court
issues a writ of Mandamus to the authority
concerned to pass a mutual transfer order
transferring the petitioner no.1 from Junior
Basic School, Tapri Kalan, Saharanpur
(U.P.) to Junior Basic School of District
Gautam Buddh Nagar and petitioner no.2
from Junior Basic School of District
Gautam Buddh Nagar to Junior Basic
School, Tapri Kalan, Saharanpur (U.P.)
within a period of three weeks from the
date production of a certified copy of this
order.

38. Accordingly, the writ petition
stands allowed with no order as to cost.
----------
(2022)06ILR A48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.

Writ A No. 17252 of 2021

Sandeep Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vipin Kumar Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Regularisation
-
Compassionate
Appointment
-
U.P.
Collection Peons' Service Rules, 2004; U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974: Rule 2(a) - Mere inaction on
the part of the State will not deny the
benefit of right which accrued on account
of the Regularization rules. The advantage
which the petitioner would have got, had the
petitioner's father been regularized before his
6 All. Sandeep Kumar Yadav Vs. State of U.P. & Ors.
49
death, should have been extended to the
petitioner. (Para 8)

The petitioner's father was considered to be a
fit case for being regularized on 22.02.2019.
However, in between, on 30.11.2017, he died.
The petitioner thereafter prayed for an
appointment under the U.P. Recruitment of
Dependants of Government Servants Dying in
Harness Rules, 1974 on 06.03.2019. By the
impugned order dated 19.09.2020, the claim
of the petitioner has been refused by saying
that the petitioner's father was not a regular
Government servant as has been defined in
the Dying in Harness Rules and therefore,
petitioner was not entitled for getting an
appointment under the said Rules. (Para 1, 2,
4)

Hon'ble Court observed that a list of peons
who were to be regularized was issued on
24.12.2016 in which the petitioner's father
was shown at Serial No. 9. However, since
the petitioner's father was above 45 years of
age, outright regularisation was not done but
a permission was sought from the State
Government for the relaxation of age. The
State Government relaxed the age of the
petitioner's father and considered him to be
a
fit
case
for
being
regularized
on
22.02.2019.

When the matter w.r.t. age relaxation had
been forwarded to the Additional Chief
Secretary,
Revenue
Department,
Government of Uttar Pradesh, Lucknow
much before the father of the petitioner
had died, then the case of the petitioner
could not be jeopardized simply because
the age relaxation was conveyed to the
District Magistrate on 22.02.2019 i.e. after
the
petitioner's
father
had
died
on
30.11.2017. The petitioner ought to be
given the advantage which would have
accrued to him. Had the State acted with
alacrity, the District Magistrate could have
passed the order on the age relaxation of
the petitioner's father before his death.
(Para 7)

Writ petition partly allowed.(E-4)

Precedent followed:
1. Nikhil Bharadwaj Vs St. of U.P. & ors.., Writ-A
No. 2988 of 2021, decided on 06.10.2021 (Para
5)

Precedent distinguished:

1. Pawan Kumar Yadav Vs St.of U.P. & ors.,
2010 (8) ADJ 664 (Para 6)

Present
petition
assails
order
dated
19.09.2020, passed by District Magistrate,
Bhadohi.

(Delivered by Hon'ble Siddharth Varma , J.)

1. The present writ petition is being
decided on a pure question of law as to
whether would the petitioner's father was to
be treated as a Government employee on
the
date
when
he
died
when
the
regularisation order was passed after his
death ?

2. The facts of the case are that the
petitioner's father was initially appointed on
the post of Seasonal Collection Peon on
1.2.1995 in Tehsil Gyanpur, District Sant
Ravidas Nagar (Bhadohi). After having put
in substantial number of years of service,
he
was
considered
eligible
for
regularisation as per the U.P. Collection
Peons' Service Rules, 2004. A list of peons
who were to be regularized was issued on
24.12.2016 in which the petitioner's father
was shown at Serial No.9. However, since
the petitioner's father was above 45 years of
age, outright regularisation was not done
but a permission was sought from the State
Government for the relaxation of age. The
State Government relaxed the age of the
petitioner's father and considered him to be
a fit case for being regularized on
22.2.2019. However, in between, on
30.11.2017, the petitioner's father died. The
petitioner
thereafter
prayed
for
an
appointment under the U.P. Recruitment of
Dependants of Government Servants Dying
50 INDIAN LAW REPORTS ALLAHABAD SERIES
in
Harness
Rules,
1974
(hereinafter
referred to as the "Dying in Harness
Rules")
on
6.3.2019.
The
District
Magistrate vide letter dated 15.3.2019
sought directions from the Additional Chief
Secretary,
Revenue
Department,
Government of Uttar Pradesh, Lucknow as
to what was to be done with regard to the
case of the petitioner. However, when no
response was there from the side of the
respondent-Additional Chief Secretary, the
petitioner filed a writ petition being Writ-A
No.16701 of 2019 (Sandeep Kumar Yadav
vs. State of U.P. & Ors.) wherein on
22.10.2019, the following order was passed
:-

"Petitioner's father was employed as
Seasonal Collection Peon. A decision had
been taken by the District Magistrate
during his lifetime to regularise his
services.
It
appears
that
orders
of
regularisation could not be passed as a
recommendation had been made to the
State Government for grant of relaxation as
the father of petitioner has crossed the
maximum age fixed in the rules. The State
Government has granted such permission in
accordance with law. It is therefore,
submitted that petitioner's father would be
covered
within
the
definition
of
Government Servant and, therefore, on
account of his death in harness on
30.11.2017, petitioner's claim for grant of
compassionate appointment is liable to be
considered under Uttar Pradesh Dying in
Harness Rules, 1974. Representation of
petitioner made in that regard since has
remained without any decision taken by the
Committee as such the petitioner has
approached this Court.

Perusal of record would go to show
that District Magistrate, Bhadohi has
sought some clarification from the State
Government in the matter relating to grant
of compassionate appointment. In the facts
and circumstances of the present case, it
would be appropriate to direct second
respondent to respond to the letter of the
District
Magistrate,
Bhadohi
dated
15.03.2019 within a period of six weeks
from the date of presentation of a certified
copy of this order. The District Magistrate,
Bhadohi i.e. respondent No.3 shall pass
appropriate orders in respect of petitioner's
claim within a further period of three
months thereafter."

3. In response thereof the District
Magistrate, Bhadohi passed the order dated
19.9.2020 which has been challenged in the
instant writ petition.

4. Primarily by the order dated
19.9.2020 the claim of the petitioner has
been refused by saying that the petitioner's
father was not a regular Government
servant as has been defined in the Dying in
Harness Rules. By the impugned order, it
has been virtually said that since as per
Rule 2(a) of the Dying in Harness Rules,
the
petitioner's
father
was
not
a
Government Servant, the petitioner was not
entitled for getting an appointment under
the Dying in Harness Rules.

5. Learned counsel for the petitioner
has relied upon a judgment of this Court
dated 6.10.2021 passed in Writ-A No.2988
of 2021 and has submitted that had the
petitioner's father been regularized as per
his entitlement before his death, then the
petitioner's
claim
could
have
been
considered. However, since the lethargy of
the State Authorities had delayed the
regularisation of the petitioner's father, the
regularisation was not done during his lifetime. He submits that if the regularisation
had been done during the life-time of the
petitioner's father, then the petitioner would
6 All. Prem Shankar Vs. Rajeev Pandey Spl. Land Acquisition officer Bareilly & Anr.
51
have
definitely
been
entitled
for
appointment under the Dying in Harness
Rules.

6.

Learned
Standing
Counsel,
however, relying upon a judgment rendered
by a Full Bench of this Court in Pawan
Kumar Yadav vs. State of U.P. & Ors.
reported in 2010 (8) ADJ 664 has
submitted that since the petitioner's father
was not a Government servant as has been
defined in Rule 2(a) of the Dying in
Harness Rules, the petitioner was not
entitled to be considered for appointment.

7. Having heard learned counsel for the
petitioner and learned Standing Counsel, the
Court is of the view that when the matter with
regard to age relaxation had been forwarded
to the Additional Chief Secretary, Revenue
Department, Government of Uttar Pradesh,
Lucknow much before the father of the
petitioner had died, then the case of the
petitioner could not be jeopardized simply
because the age relaxation was conveyed to
the District Magistrate on 22.2.2019 i.e after
the petitioner's father had died on 30.11.2017.
The petitioner ought to be given the
advantage which would have accrued to him.
Had the State acted with alacrity, the District
Magistrate could have passed the order on the
age relaxation of the petitioner's father before
his death.

8. Under such circumstances, the Court
presumes that the advantage which the
petitioner would have got, had the petitioner's
father been regularized before his death,
should have been extended to the petitioner.
Under such circumstances, the order dated
19.9.2020 is quashed and is set-aside. The
matter is remitted back to the District
Magistrate, Bhadohi who shall, within a
period of one month from the date of
presentation of a certified copy of this order,
reconsider the case of the petitioner treating
that the petitioner's father was a regularized
employee at the time of his death.

9. The writ petition is, accordingly,
partly allowed.
----------
(2022)06ILR A51
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 25.05.2022

BEFORE

THE HON'BLE ROHIT RANJAN AGARWAL, J.

Contempt Application (Civil) No. 5344 of 2021

Prem Shankar ...Applicant
Versus
Rajeev
Pandey
Spl.
Land
Acquisition
officer Bareilly & Anr. ...Respondents

Counsel for the Applicant:
Krishna Kant Mishra

Counsel for the Respondents:
--

A. Contempt of Courts Act, 1971Section 12-acquisition of the landdeliberate and wilful disobedience of
the order-representation was to be
decided
by
the
Special
Land
Acquisition
Officer-Committee
adjudicated the claim and found the
applicant entitled for 1/3 rd share for
the compensation-applicant aggrieved
by the compensation awarded may
approach
before
the
appropriate
forum, but no contempt proceedings
are maintainable as there is no wilful
disobedience of the Writ Court. (Para 1
to 38)

The application is dismissed. (E-6)

List of Cases cited:
1. Reddy Veerana Vs St. of U.P. & ors. Civil
appeal No. 3636 of 2022