# Saroj Kumar v. State of U.P. & Ors

- **Citation:** (2019) 4 ILRA 1113
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-01
- **Bench:** Sudhir Agarwal
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/saroj-kumar-v-state-of-u-p-ors-44863
- **Pages:** 6

## Headnote

A. Service Law - U.P. Recruitment of
Dependants
of
Government
Servants
(Dying in Harness) Rules, 1974 and U.P.
Temporary
Government
Servants
(Termination of Service ) Rules, 1975 -
Compassionate appointment- made on
temporary basis , i.e., on probation under
Rules 1974-appointment rejected under
Rules,1975 - on the ground-that he had
applied
after
five
years-badcompassionate appointment -a regular
appointment - not to be treated as "
temporary appointment"-Rules,1975 not
applicable-if compassionate appointment
not obtained by fraud-termination is
arbitrary.

Held- it may be noticed that compassionate
appointment of petitioner has not been
terminated on the ground that he could not
perform satisfactorily on probation but it has
been terminated on the ground that he applied
for compassionate appointment after five
years. Though term of five years under Rules
1974 is not a period of limitation and instead a
compassionate appointment could have been
allowed even after five years if condition of
family
member
of
deceased
employee
continuing and persisting, penurious, justifying
compassionate appointment. (Para 18)

Writ Petition allowed. (E-9)

List of cases cited:

## Text

4 All. Saroj Kumar Vs. State of U.P. & Ors.
1113
are broadly similar to the Circular dated
09.10.2003 and it shows that upgradation
in the case in hand resulting into increase
in posts in superior cadres including that
of A.S.I. have been treated to be a
promotion,
for
which
eligibility
conditions and burdening of different
responsibilities of greater importance in
the higher posts are all to be shared by
Officials, who are promoted against
prescribed posts, hence, above judgment
will apply with full force in the case in
hand.

30. In that view of the matter, I am
of the opinion that issued raised in present
writ petitions is covered by decision in
Union of India Vs. Pushpa Rani (supra)
and, therefore, application of provisions
of
reservation
for
promotion
of
respondents 5 to 19 in Petition-1 and
respondents 5 to 7 in Petition-2 pursuant
to Circular dated 15.09.2004 providing
restructuring in Cadre of rank/catogory of
RPF (Combatised) which is up for
consideration in present writ petitions, is
neither illegal nor bad.

31. In the result, both writ petitions
fail being devoid of merits and are
dismissed accordingly.

32. Interim order, if any, stands
vacated.
----------
(2019)12 ILR A1113

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 1.11.2019

BEFORE
THE HON'BLE SUDHIR AGARWAL, J.

Writ A-No. 21194 of 2002

Saroj Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Bhanu Bhushan Jauhari

Counsel for the Respondents:
C.S.C.

A. Service Law - U.P. Recruitment of
Dependants
of
Government
Servants
(Dying in Harness) Rules, 1974 and U.P.
Temporary
Government
Servants
(Termination of Service ) Rules, 1975 -
Compassionate appointment- made on
temporary basis , i.e., on probation under
Rules 1974-appointment rejected under
Rules,1975 - on the ground-that he had
applied
after
five
years-badcompassionate appointment -a regular
appointment - not to be treated as "
temporary appointment"-Rules,1975 not
applicable-if compassionate appointment
not obtained by fraud-termination is
arbitrary.

Held- it may be noticed that compassionate
appointment of petitioner has not been
terminated on the ground that he could not
perform satisfactorily on probation but it has
been terminated on the ground that he applied
for compassionate appointment after five
years. Though term of five years under Rules
1974 is not a period of limitation and instead a
compassionate appointment could have been
allowed even after five years if condition of
family
member
of
deceased
employee
continuing and persisting, penurious, justifying
compassionate appointment. (Para 18)

Writ Petition allowed. (E-9)

List of cases cited:

1. Ravi Karan Singh vs. State of U.P. and
others, 1999(3) UPLBEC 2263

2. Dhirendra Pratap Singh v. District Inspector
of Schools and others 1991 (1) UPLBEC 427;

3. Gulab Yadav vs. State of U. P. and others
1991 (2) UPLBEC 995
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
4. Budhi Sagar Dubey v. District Inspector of
Schools and others 1993 ESC 21

5.Sanjai Kumar vs. Dy. Director General (NCE),
Directorate and others, 2002(3) UPLBEC 2748.

6. Ram Chandra vs. State of U.P. and others,
2008(2) UPLBEC 1431

7. Jagdish Narain vs. Union of India and
others, 2011(3) UPLBEC 2196

8. Sr. General Manager, Ordnance Factory vs.
Central Administrative Tribunal and others,
2016(2) ADJ (Distinguished)

(Delivered by Hon'ble Sudhir Agarwal, J.)

1. Heard Sri Bhanu Bhushan
Jauhari, learned counsel for petitioner and
learned Standing Counsel for State of
U.P., and perused the record.

2. Principal reliefs claimed in this
writ petition reads as under:

"(i) to issue writ order or
direction in the nature of certiorari
quashing
order
dated
10.5.2002
(Annexure No. 9).

(ii) to issue writ order or
direction in the nature of mandamus
directing
and
commanding
the
respondents to treat the petitioner in
service and to make regular payment of
the salary and other allowances of the
petitioner with effect from 1.11.2001 till
retirement of the petitioner."

3. It is contended by learned counsel
for
petitioner
that
petitioner
was
appointed as Lower Grade Clerk in the
office
of
Executive
Engineer
Bhawan/Marg
Service
Khand
Lok
Nirman
Vibhag
Bareilly
on
compassionate basis vide order dated
1.10.1999 passed by Chief Engineer, West
Zone, Lok Nirman Vibhag, U.P. Bareilly
on probation. Thereafter, show cause
notice was issued to petitioner on
2.1.2002 stating that as father of petitioner
died on 22.12.1984 and application for
appointment
on compassionate basis
under U.P. Recruitment of Dependants of
Government Servants (Dying-in-Harness)
Rules, 1974 (hereinafter referred to as
"Rules 1974") was submitted after more
than 5 years, so he should show cause
why his appointment be not terminated.

4. Petitioner submitted reply dated
14.1.2002. Thereafter impugned order
dated
10.5.2002
has
been
passed
terminating
petitioner
under
U.P.
Temporary
Government
Servants
(Termination of Service) Rules, 1975
(hereinafter referred to as "Rules 1975").

5. It is contended by learned counsel
for
petitioner
that
appointment
of
petitioner was made on compassionate
basis on a substantive basis and hence, he
could not have been terminated under
Rules 1975. Since the said Rules are not
attracted in this case.

6. The basic facts when questioned,
learned Standing Counsel could not
dispute but submitted that an appointment
on
probation
is
also
temporary
appointment. Therefore, petitioner was
terminated in purported exercise of power
under Rule 3 of Rules 1975.

7. The respective submissions raised
a question, whether appointment of
petitioner be treated to be substantive or a
temporary appointment which could have
been terminated under Rules 1975. Thus,
the question for consideration as this
Court formulated for adjudication in this
case
is
"whether
compassionate
4 All. Saroj Kumar Vs. State of U.P. & Ors.
1115
appointment under Rules, 1974 could
have been made on temporary basis and
such
appointment
could
have
been
terminated in purported exercise of
powers under Rules, 1975".

8. I find that on a reference made by a
learned Single Judge to a Larger Bench, this
issue was considered by a Division Bench
consisting of Hon'ble Markandey Katju (as
His Lordship then was) and Hon'ble Kamal
Kishore, JJ. in Ravi Karan Singh vs. State of
U.P. and others, 1999(3) UPLBEC 2263.
Earlier there were three Single Judge
judgments in Dhirendra Pratap Singh v.
District Inspector of Schools and others
1991 (1) UPLBEC 427; Gulab Yadav vs.
State of U. P. and others 1991 (2) UPLBEC
995 and Budhi Sagar Dubey v. District
Inspector of Schools and others 1993 ESC
21 wherein it was held that an appointment
under
Rules,
1974
is
a
permanent
appointment. Subsequently a learned Single
Judge
disagreed
with
aforesaid
three
judgments and referred the matter to Larger
Bench. In Ravi Karan Singh vs. State of
U.P. (supra), Larger Bench upheld the view
taken in above three judgments and held that
an appointment under Rules, 1974 has to be
treated as permanent appointment since
compassionate appointment, if treated to be a
temporary appointment, it will nullify the very
purpose
of
Rules
applicable
for
compassionate appointment. Larger Bench
(Division Bench) also held that in respect of
appointment made on compassionate basis
Rules, 1975 will not apply. Para 2 of judgment
laying down law by Division Bench in Ravi
Karan Singh vs. State of U.P. (supra) reads
as under:

"2.
In
our
opinion,
an
appointment
under
the
Dying-inHarness Rules has to be treated as a
permanent appointment otherwise if such
appointment Is treated to be a temporary
appointment, then it will follow that soon
after the appointment, the service can be
terminated and this will nullify the very
purpose of the Dying-in-Harness Rules
because such appointment is intended to
provide immediate relief to the family on
the sudden death of the bread earner. We,
therefore, hold that the appointment under
Dying-in -Harness Rules is a permanent
appointment
and
not
a
temporary
appointment, and hence the provisions of
U. P. Temporary Government Servant
(Termination of Services) Rules. 1975
will not apply to such appointments."
(emphasis added)

9. Above judgment was followed by
another Division Bench consisting of
Hon'ble S.K. Sen, C.J. and Hon'ble Ashok
Bhushan, J. (as His Lordship then was) in
Sanjai Kumar vs. Dy. Director General
(NCE), Directorate and others, 2002(3)
UPLBEC 2748.

10. Another Division Bench in Ram
Chandra vs. State of U.P. and others,
2008(2) UPLBEC 1431 again had an
occasion to consider this aspect and
following judgment in Ravi Karan Singh
vs. State of U.P. (supra), Court held that
appointments made under Rules, 1974 are
of permanent nature hence Rules, 1975
will
not
be
applicable.
Relevant
exposition of law laid down by Division
Bench in Ram Chandra vs. State of U.P.
(supra) is reproduced as under:

"It is settled law that the
appointments made under the provisions
of the U.P. Recruitment of Dependants of
Government Servants (Dying-in-Harness)
Rules, 1974 are of permanent nature.
Since appointment of the petitioner was of
permanent nature, the provisions of U.P.
1116 INDIAN LAW REPORTS ALLAHABAD SERIES
Temporary
Government
Servants
(Termination of Service) Rules, 1975
were not applicable." (emphasis added)

11. Then came fourth decision in
Jagdish Narain vs. Union of India and
others, 2011(3) UPLBEC 2196 which
was a matter not governed by Rules, 1974
and Rules, 1975 applicable to State
Government employees but it was a case
relating to employment under Central
Government. The provisions with respect
to compassionate appointment were made
by
Ministry
of
Personnel,
Public
Grievances and Pensions (Department of
Personnel
&
Training)'s
Office
Memorandum No. 14014/6/86-Estt. (D)
dated 30.06.1987 . One Late Sarwan Lal,
father of Jagdish Narain was appointed on
probation for a period of two years with
the rider that in case his work and conduct
during period of probation is found
unsatisfactory
his
services
may
be
terminated. Subsequently when services
of
Jagdish
Narain
was
found
unsatisfactory he was terminated vide
order dated 22.09.1994. This termination
was challenged in Central Administrative
Tribunal in Original Application No. 844
of 1995 which was dismissed. Thereafter
matter came to this Court. Relying on
three Division Bench judgments in Ravi
Karan Singh vs. State of U.P. (supra);
Sanjai Kumar vs. Dy. Director General
(NCE), Directorate (supra) and Ram
Chandra vs. State of U.P. (supra),
Division Bench in Jagdish Narain vs.
Union of India (supra) held that
appointment on probation amounts to a
temporary appointment which is not
permissible when an appointment is made
on compassionate basis and, therefore,
condition
of
probation
stated
in
appointment letter was illegal and of no
consequence. Petitioner's appointment on
compassionate basis was liable to be
treated as permanent in nature, hence
termination was bad and with aforesaid
findings writ petition was allowed and
order of Tribunal as well as termination
order were set aside.

12. In a subsequent matter which
again arose in respect of employment in
Central Government, in Sr. General
Manager,
Ordnance
Factory
vs.
Central Administrative Tribunal and
others, 2016(2) ADJ 751 correctness of
judgment in Jagdish Narain vs. Union of
India (supra) was examined by a Full
Bench on a reference made by a Division
Bench disagreeing with Division Bench
judgment in Jagdish Narain vs. Union of
India (supra). Three questions referred to
be considered by Full Bench are as under:

"1. Where a person is granted
compassionate appointment as a member
of the family of a deceased employee of
the government who has died in harness
in relaxation of the normal rules for
recruitment, is it not necessary that even a
compassionate appointee be placed on
probation in the first instance, in the same
manner as any other direct recruit, since
the provision pertaining to appointment
on probation has not been excluded or
exempted in the case of a compassionate
appointment;

2. Since an appointment on
compassionate grounds on probation is
also a regular appointment and a person
appointed as such is not offered a
temporary appointment, whether there is
any violation of law or principle in
appointing a person in this category on
probation in the first instance;

3.
In
view
of
the
clear
distinction
in
service
jurisprudence
between a regular and a temporary
4 All. Saroj Kumar Vs. State of U.P. & Ors.
1117
appointee, whether the appointment of a
person on a compassionate basis on
probation is permissible in law."

(emphasis added)

13. Above questions were answered
by Full Bench, as under:

"26. We, accordingly, answer
the questions which have been referred to
the Full Bench in the following terms:

(1) Re Question (1): Where a
person is appointed on a compassionate
basis as a dependent member of the
family of an employee of the State who
has died in harness, such an appointment
can be made on probation. The object
and purpose of appointing a person on
probation is to determine the suitability of
the person for retention in service.
Appointment of a person who is engaged
on a compassionate basis on probation is
not contrary to law or unlawful.

(2) Re Question (2): Since an
appointment on compassionate grounds
on
probation
is
also
a
regular
appointment and a person appointed as
such
is
not
offered
a
temporary
appointment, such an appointee can be
placed on probation in the first instance.

(3)
Re
Question
(3):
The
appointment
of
a
person
on
a
compassionate basis on probation is
permissible in law." (emphasis added)

14. Reply to Question (2) clearly
shows
that
Full
Bench
held
that
appointment on compassionate basis is a
regular appointment and is not to be
treated as "temporary appointment". In
para 18 of judgment Full Bench clearly
observed that there is a distinction
between appointment on probation and
temporary appointment. The relevant
observations read s under:

"An appointment on probation
does not detract from the nature of the
appointment which is to a regular service.
Probation is merely an opportunity for the
probationer to establish by dint of the
work which is rendered during the period
of probation, that he or she is suitable for
being retained in service. On the part of
the employer, probation enables the
appointing authority to determine the
suitability of the probationer for retention
in service. There is a well accepted
distinction in law and in service
jurisprudence between a probationary
appointment
and
a
temporary
appointment." (emphasis added)

15. Full Bench referred to earlier
Division Bench judgments in Ravi Karan
Singh vs. State of U.P. (supra); Sanjai
Kumar vs. Dy. Director General (NCE),
Directorate (supra) and Ram Chandra
vs.
State
of
U.P.
(supra)
and
distinguished aforesaid judgments on the
ground that in all these matters, issue,
whether a compassionate appointment can
be made on probation or not was not
involved and these three judgments,
therefore, considered a different issue and
in fact Division Bench in Jagdish Narain
vs. Union of India (supra) mistakenly
relied on above three judgments omitting
the fact that question of appointment on
probation was not involved in earlier
cases. Full Bench, therefore, overruled
Division Bench judgment in Jagdish
Narain vs. Union of India (supra) and
distinguished earlier three judgments in
Ravi Karan Singh vs. State of U.P.
(supra); Sanjai Kumar vs. Dy. Director
General (NCE), Directorate (supra) and
Ram Chandra vs. State of U.P. (supra)
observing that neither issue nor principle
of
law
enunciated
in
above
three
judgments was applicable to the dispute
1118 INDIAN LAW REPORTS ALLAHABAD SERIES
which had arisen in Jagdish Narain vs.
Union of India (supra).

16. In view thereof it is evident that
Full Bench judgment in Sr. General
Manager,
Ordnance
Factory
vs.
Central
Administrative
Tribunal
(supra) is not applicable in the case in
hand.

17. Instead issue in present writ
petition is squarely covered by earlier
three Division Bench judgments in Ravi
Karan Singh vs. State of U.P. (supra);
Sanjai Kumar vs. Dy. Director General
(NCE), Directorate (supra) and Ram
Chandra vs. State of U.P. (supra) which
were in respect of employment in State
Government and had considered question
of compassionate appointment under
Rules, 1974 and have clearly held that in
case of such appointments, Rules, 1975
are not applicable since compassionate
appointment under Rules, 1974 is of
permanent nature.

18. Here also respondents have
clearly
relied
on
the
fact
that
compassionate appointment of petitioner
was made on temporary basis i.e. on
probation and has been terminated by
taking recourse to Rules, 1975. It may be
noticed that compassionate appointment
of petitioner has not been terminated on
the ground that he could not perform
satisfactorily on probation but it has been
terminated on the ground that he applied
for compassionate appointment after five
years. Though term of five years under
Rules 1974 is not a period of limitation
and instead a compassionate appointment
could have been allowed even after five
years if condition of family member of
deceased
employee
continuing
and
persisting,
penurious,
justifying
compassionate appointment. Herein, it is
not a case of respondents that after five
years family of deceased employee
including petitioner were not facing
penurious
condition
and
therefore,
compassionate
appointment
is
not
justified. Moreover, once compassionate
appointment was made and there was no
fraud, misrepresentation or other fault on
the part of such employee, In my view,
termination
of
compassionate
appointment in such a case is patently
arbitrary, whimsical and erroneous.

19. In the present case, however,
since
respondents
have
terminated
petitioner treating his appointment only as
temporary taking recourse of Rules 1975,
this approach of respondents is clearly in
the teeth of law laid down in above
Division Bench judgments in Ravi Karan
Singh vs. State of U.P. (supra); Sanjai
Kumar vs. Dy. Director General (NCE),
Directorate (supra) and Ram Chandra
vs. State of U.P. (supra).

20. Considering the totality of the
facts and circumstances of the case, the
writ petition is allowed. Impugned order
dated 10.5.2002 (Anexure No. 9) is
hereby quashed. Petitioner shall be
entitled for all consequential benefits.
----------

(2019)12 ILR A1118

ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.11.2019

BEFORE
THE HON'BLE MRS. SUNITA AGARWAL, J.

Writ-A No. 69714 of 2015

Sunil Kumar Dubey & Ors. ...Petitioners
Versus